Sometimes the executor or administrator of an estate cannot act immediately. For example, the probate process may be stalled. In such a situation, it may nevertheless be necessary to take steps to preserve estate assets.
Section 103 of the Wills, Estates and Succession Act ("WESA") expands the scope for the administration of an estate while legal proceedings are ongoing. The Court has the jurisdiction under s. 103 of WESA to appoint a temporary administrator of an estate even if the estate is not in litigation. For example, a temporary administrator can be appointed while the grant of probate is being processed, which can sometimes take many months.
The key addition to the legislation is the language "pending a proceeding":
Administration pending legal proceedings
103 (1) The court may appoint a person as the administrator of the estate of a deceased person pending a proceeding
(a) in which the validity of the will of the deceased person is in issue, or
(b) to obtain or revoke a representation grant.
A "proceeding" is defined very broadly in the Supreme Court Civil Rules.
This is considerably different than the predecessor, s. 8 of the Estate Administration Act, which includes the language "pending an action":
Administration while legal proceedings pending
8 (1) Pending an action touching the validity of a will, or for obtaining, recalling or revoking a probate or a grant of administration, the court may appoint an administrator of the estate of the deceased person."
An "action" refers only to a lawsuit, a proceeding started by Notice of Civil Claim.
Estate administrators and practitioners should consider the expanded scope of s. 103 of WESA. In a variety of circumstances it can be used to hasten the administration of an estate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.