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A divorced woman living common law with a man made a Will in…

A divorced woman living common...

A divorced woman living common law with a man made a Will in her previous married name during the common law relationship. Common law husband died several years before woman. The Will named as executors her oldest 2 sons, the younger of whom has died. The older executor now proposes to apply for letters of administration with the Will annexed. Is this the correct procedure in British Columbia? I am a Senior Life Member of the Law Society of Saskatchewan and this just does not look right to me. I am acting for the third son. The Will leaves the estate to her 5 children equally (2 predeceased her leaving children).

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1/27/2016

Lawyer: Debra, Lawyer replied 6 years ago

Debra, Lawyer

Category: Canada Law

Satisfied Customers: 142,882

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I am not following why you think this doesn't seem right? But I could be missing something.

Isn't the son who is applying for probate the one of two designated executors who is still living?

Customer reply replied 6 years ago

He has served notice that he intends to apply for letters of administration with will annexed. He is the survivor of the two executors named. I would think that he and the executor of the deceased executor would apply for probate - that's what I would expect would be required in SK.Probate not Administration with will annexed - he is trying to do this himself, by hand, using forms from the internet. I would like to "scare" him into the arms of a lawyer who would see to it that he does it right!

Lawyer: Debra, Lawyer replied 6 years ago

I see.

Have you seen the wording of the Will as generally the Will would say whether one takes over if the other is predeceased.

In most cases the executor of the deceased executor would only take over if the executor was actively acting as executor and dies.

But you could certainly say that the mother's intention was not to have one son do this alone and so this son should at least consult with a lawyer face to face.

The scare tactic could be that if he makes a mistake he could be personally liable and that it is a risky thing he is doing.

I cannot speak to you on the telephone. I am sorry about that.

Customer reply replied 6 years ago

Again - should he be applying for probate and not administration with will annexed - your courts still do issue probate do they not?

Lawyer: Debra, Lawyer replied 6 years ago

It's just a different term.

He is applying for probate but now the terms uses are just administration with the Will annexed or without a Will.

Debra, Lawyer

Category: Canada Law

Satisfied Customers: 142,882

Experience: Lawyer

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