How to Apply for Letters of Probate in Newfoundland and Labrador

Example: Agnes, 81, lives in Gander and has two grown children, Martin in Grand Falls-Windsor and Shelley in Mount Pearl. At a family supper she tells them both which of them she has named as executor, and why she wanted them to hear it together. Shelley asks a sensible question: what would happen if they each set about starting the court process on their own? The rules have an answer. Only one Notice of Application may be posted for the same deceased person while the first one remains effective, and a competing claim goes in by way of a caveat.^[NaN] Agnes's point is simpler: if everyone knows the plan, nobody needs a caveat.

The Notice of Application is the step that most sets this province apart, and it comes first. Rule 56 of the Rules of the Supreme Court, 1986, read alongside the court's own process overview, sets out the rest. Readers who want the wider context first can start with our overview of probate across Canada, step by step.

The court and the first step #

The Supreme Court of Newfoundland and Labrador has jurisdiction over the appointment and supervision of executors and administrators, according to the court's own page.^[NaN] That page names the documents in the province's own terms: an executor named in a will applies for letters of probate, while letters of administration apply where there is no will.

The first step is to post a Notice of Application with the Registry Office of the Supreme Court.^[NaN] Rule 56.04 sets out the form, Form 56.04A, and says the notice is posted in the Registry, placed in a public folder, entered in an electronic database and recorded in a public register.^[NaN] The court page then refers to a "5-day notice period": once it has passed and the applicant has confirmed with the court that no caveats have been entered and no earlier grant has been made, the application can go ahead.^[NaN]

One notice per estate, and when it lapses #

Rule 56.04(3) allows only one Notice of Application for the same deceased person while the original remains effective; a competing claim to probate or administration is made by entering a caveat.^[NaN] That is the rule Shelley's question turned on.

A notice does not stay open forever. Under Rule 56.04(4), a notice generally lapses 6 months after it is posted unless the application is made to the court within that time, or a caveat has been entered and its own time limit has not run out.^[NaN]

The application itself #

Under Rule 56.05(1), every application for a grant is in Form 56.05A, signed by the applicant or the applicant's lawyer, and filed with the court.^[NaN] The court page uses the words petition and application for this document. Rule 56.06(1) adds that it is accompanied by an affidavit verifying the facts the applicant relies on.^[NaN]

Rule 56.06 also lists what the application has to show:

• the name and address of everyone entitled to share in the estate, so far as known, and whether each is under 19;
• where applicable, the people living in the province who have a prior or equal right to the grant, and their renunciations or consents; and
• the deceased's marital status and occupation at death.^[NaN]

The forms are available through the court's probate and administration page, which is the place to get current versions.

The inventory and the fees #

Rule 56.10 requires the applicant to file an inventory and valuation of the deceased's assets in Form 56.10A, with an affidavit that it is a true and correct statement of the deceased's property so far as it has been possible to find out.^[NaN] The court's page adds that the inventory lists property located in Newfoundland and Labrador and is "used to set the amount of probate fees charged."^[NaN]

Our Newfoundland probate fees article sets out how the fee is worked out, and the probate fee calculator offers a ballpark figure. The court page itself points to its Court Service Fees for current figures.

Proving the will #

Where the will was witnessed, Rule 56.11(1) calls on one of the attesting witnesses to prove its due execution by affidavit, using Form 56.11A.^[NaN] The court page calls this the "Proof of Will" and notes that in most cases one of the witnesses who was present when the will was signed completes it.^[NaN] Our explainer on the affidavit of execution describes what that document generally covers.

A holograph will uses Form 56.11B instead, or another form a judge requires to be satisfied that the whole will, including the signature, is in the testator's handwriting (Rule 56.11(3)).^[NaN] Our guide to holograph wills explains when a will qualifies.

The will itself travels with the application. The court page asks that it be referred to as Schedule A and marked on the back of the last page with the signatures of the applicant, the witness completing the Proof of Will and the people who took the affidavits.^[NaN]

Who may apply, and in what order #

Rule 56 sets priority lists, both subject to the judge's discretion. Where there is a will, executors come first (Rule 56.01).^[NaN] Where there is no will, Rule 56.02 lists, in order: spouse; children; grandchildren and other issue; father and mother; brothers and sisters and their issue; grandparents; uncles and aunts and their issue; creditors; and the Crown.^[NaN]

Two further rules shape who receives administration. A person living in the province is preferred over someone with an equal right who lives outside it, unless a judge orders otherwise, and letters of administration may not be granted to more than three persons (Rule 56.03).^[NaN]

Putting the steps in order #

The sequence in this province runs a little differently from its neighbours, because the notice comes before the application rather than alongside it. In broad strokes, an executor generally:

1. posts the Notice of Application (Form 56.04A) in the Registry;
2. waits out the notice period the court describes and confirms that no caveat has been entered and no earlier grant made;
3. files the application in Form 56.05A with the supporting affidavit, the inventory and valuation and its affidavit, the will marked as Schedule A, and the Proof of Will; and
4. keeps an eye on the 6-month lapse date for the notice while the papers come together.^[NaN][NaN]

It helps to have most of the inventory work done before posting the notice, so the lapse date is not a source of pressure.

Bonds #

An applicant who wants the judge to dispense with a bond, or to reduce its amount or the number of sureties, says so in the application (Rule 56.05(2)).^[NaN] Under Rule 56.21(2), the court may accept a bond from a licenced insurer in place of a personal bond with two sureties.^[NaN]

What the court staff can and cannot do #

The court's page is candid on one point: "court staff cannot provide legal advice."^[NaN] The page still sets out the process and the documents, which makes it a good first read before an executor gathers anything.

Talking it through ahead of time #

Agnes's supper conversation did as much as any form to smooth the way: her children know who the executor is, where the will is kept and who signed as witnesses. Our Newfoundland and Labrador will guide covers the signing rules, and the Newfoundland and Labrador will page collects the basics.

If you would like your family to have that same clarity, you can write your will with It's Simple Will.