A party may file a notice of dispute before a grant is obtained, if they dispute the validity of a will or the authority of another person to apply for a grant in relation to that will.  The filing of a notice of dispute prevents the court registry from issuing a grant (of probate or administration) until the dispute has been determined.

However, if a notice of dispute is not filed in time and the grant is issued, this does not necessarily end the matter – a person may seek an order revoking the grant.

In Narsaiya Estate (Re) 2023 BCSC 1350, the deceased made two wills, one in January 2021 and one in July 2021.  The distribution under the two wills was essentially the same, dividing the estate equally between the deceased’s six children.  The difference between the two wills was the person(s) appointed as executor.  The January will named five of the children as executors.  The July will named only one of the children as executor (Dorothy).

The four other children named as executors under the January Will (i.e. not Dorothy) filed notices of dispute, alleging that Dorothy was unfit to act as executor because she was in a conflict of interest, was hostile to the parties, and was too busy.  They did not contest the validity of the July will.

Next, the four children applied for a grant of probate of the January Will (despite the existence of the July Will).  As part of that application, they needed to confirm that there was no testamentary document that was dated later than the January Will (which was not the case, since the July Will Existed).

The four children obtained a grant of probate under the January Will.  Dorothy applied seeking orders revoking and nullifying the grant of probate of the January Will.

The Court confirmed that it has the jurisdiction to revoke grants of probate.  Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to have been issued.  There are numerous grounds on which probate can be revoked, including:

1. where subsequent wills have been discovered;
2. where it has been found that the will is otherwise invalid;
3. where it has been determined that the testator is not, in fact, dead;
4. where it is shown that the executor is under a legal disability (minority or mental infirmity); and
5. where probate has been obtained by fraud.

The Court in Narsaiya revoked the grant under the January Will.  Although the July Will was not “subsequently” discovered in the usual sense, there was a later will and its existence was not meaningfully brought to the registrar’s attention prior to the issuance of the grant.  The grant was also made, at a minimum, based on “inaccurate suggestions.”