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Newfoundland and Labrador
Regulation 2002


NEWFOUNDLAND AND LABRADOR REGULATION 93/02

NEWFOUNDLAND AND LABRADOR
REGULATION 93/02

Rules of the Supreme Court, 1986 (Amendment)
under the
Judicature Act

(Filed December 18,2002)

Under the authority of section 55 of the Judicature Act, the Rules Committee of the Trial Division makes the following Rules.

Dated at St. John’s, December 17, 2002.

Barry R. Sparkes, B.C.L.
Registrar of the Supreme Court
Secretary, Rules Committee

RULES

Analysis


        1.   Rule 56.04 R&S
Notice of Application

        2.   Rule 56.04A Added
Caveat

        3.   Form 56.04A R&S
Forms 56.04B, 56.04AA and 56.04AB Added

        4.   Commencement


 

        1. Rule 56.04 of the Rules of the Supreme Court, 1986, is repealed and the following substituted:

Notice of Application

Notice of Application

56.04. (1) The notice of application required by subsection 110(3) of the Act shall be referred to in this rule as a "Notice of Application" and shall be in Form 56.04A.

             (2)  A Notice of Application shall be posted in the Registry, as required by subsection 110(3) of the Act, by

             (a)  placing it in alphabetical order in a folder that is accessible to the public;

             (b)  entering it in an electronic database by categories of name of deceased, name of applicant, nature of application, name of executor or administrator, date of posting and name of solicitor acting for applicant; and

             (c)  recording the posting in chronological order in a document register that is accessible to the public.

             (3)  Once a Notice of Application, whether for letters of probate or administration, has been posted, no other Notice of Application in respect of the same deceased person may be posted while the original Notice of Application remains effective, but a competing claim to probate or administration may be made by entry of a Caveat.

             (4)  A Notice of Application posted on or after January 1, 2003 shall lapse and be of no further force and effect 6 months after the date of its posting unless

             (a)  an application for letters to which the Notice of Application relates is made to the court within that time; or

             (b)  a Caveat has been entered and the time limit stipulated under rule 56.04A(3) has not expired.

             (5)  Where a Notice of Application lapses as a result of operation of this rule

             (a)  the Registrar shall remove the lapsed Notice of Application from the folder maintained under rule 56.04(2)(a) and shall cause the database referred to in rule 56.04(2)(b) to have a notation made on it that the Notice has lapsed; and

             (b)  any person, including the original applicant, may post a further Notice of Application.

             (6)  A Notice of Application posted before January 1, 2003 shall lapse and be of no further force and effect on and after June 30, 2003 unless

             (a)  an application for letters to which the Notice of Application relates has been made within that time; or

             (b)  a Caveat has been entered.

             (7)  A Notice of Application may be withdrawn at any time before the issuing of a grant of Letters of Probate or Letters of Administration by filing in the Registry a Withdrawal of Notice of Application in Form 56.04B.

          (8)  Unless otherwise ordered by the court or authorized by the Registrar, all documents filed with respect to an estate shall remain with the Registry.

 

      2. Rule 56 of the Rules is amended by adding immediately after rule 56.04 the following:

Caveat

Caveat

56.04A.  (1) The Caveat referred to in section 114 of the Act shall be in Form 56.04AA.

             (2)  A Caveat may be entered in the Registry, as required by section 114 of the Act before or after the posting of a Notice of Application, by

             (a)  placing it in alphabetical order in a folder that is accessible to the public; and

             (b)  entering it in an electronic database by categories of name of deceased, name of caveator, date of entering and name of solicitor acting for caveator.

             (3)  Where a Caveat has been entered under the Act, the applicant who posted the Notice of Application to which the Caveat relates shall, within one year from the date of entry of the Caveat, commence a proceeding in the court

             (a)  to expunge the Caveat; or

             (b)  where probate is sought, to prove the will in solemn form.

             (4)  Where the applicant who posted a Notice of Application to which a Caveat relates fails to take any of the steps required by rule 56.04A(3)

             (a)  the Notice of Application shall lapse and be of no further force or effect; and

             (b)  the posting of a further Notice of Application in relation to the same deceased, by the applicant or anyone acting on behalf of the applicant, shall only be effective when service of the further Notice of Application on the original caveator or the solicitor for the original caveator has been effected.

             (5)  The Registrar may require the proof of service referred to in rule 56.04A(4) that may be reasonable, as a condition of accepting a further Notice of Application for posting.

             (6)  Where a Caveat has been entered under the Act, the Registrar shall cause the folder and the electronic database maintained under rules 56.04(2)(a) and (b) to be cross referenced so that a Caveat relating to a Notice of Application will be disclosed to a person searching for that Notice of Application.

             (7)  Where a Caveat has been entered under the Act before a Notice of Application relating to the estate of the deceased to which the Caveat relates has been posted, a person intending to post a Notice of Application after that may apply to the court by Originating Application (inter partes) naming the caveator as defendant to

             (a)  seek an order expunging the Caveat; and

             (b)  seek directions as to the manner of proceeding, whether under section 115 of the Act or otherwise to obtain a grant of letters of probate or administration, as the case may be, and a posting of a subsequent Notice of Application relating to a deceased referred to in a previous Notice of Application shall be disclosed in the electronic database at the time of the subsequent posting.

                

             (8)  A Caveat may be withdrawn at any time by filing in the Registry a Withdrawal of Caveat in Form 56.04AB.

 

        3. Rule 56 of the Rules is amended by repealing Form 56.04A and substituting the following:


Form 56.04A

(rule 56.04)

In the Supreme Court of Newfoundland and Labrador
Trial Division

Notice of Application

In the Estate of _______________, of the _______________
of _______________ in the Province of ________________,
_______________, deceased, who died on or about the _______________ day of _______________, ______.
(occupation)

FIVE DAYS after the date hereof, application will be made to one of the judges of the Trial Division of the Supreme Court of Newfoundland and Labrador, for Letters of _______________ to be granted to _______________

Dated at _______________, Newfoundland and Labrador, this _______________ day of _______________, 20___.

Address for Service:

 

 

Applicant or Solicitor for Applicant

 

 

 

 

 

Telephone No. _____________

Note:  This Notice of Application will lapse and be of no further force or effect 6 months from the date of its posting in the Registry of the Court unless within that time an application for letters of probate or administration, as the case may be, is filed in the Registry, or unless, within that time, a Caveat opposing such application is entered in the Registry.

I HEREBY CERTIFY that the above Notice of Application has been posted in the Registry from the date thereof to the present day, and that no caveat or other objection has been entered.

The _______________ day of _______, 20.

REGISTRAR.


Form 56.04B

(rule 56.04)

In the Supreme Court of Newfoundland and Labrador
Trial Division

Withdrawal of Notice of Application

In the Estate of _______________, of the _______________
of _______________ in the Province of ________________,
_______________, deceased, who died on or about the _______________ day of _______________, ______.
(occupation)

The undersigned hereby withdraws the Notice of Application posted in this Estate.

Dated at _______________, Newfoundland and Labrador, this _______________ day of _______________, 20___.

 

 

 

Applicant or Solicitor for Applicant

 

 

 

 

 

Address for Service:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Telephone No. _____________

Note:  Upon the filing of this Withdrawal of Notice of Application, the Notice of Application to which the Withdrawal relates will be of no further force or effect.


Form 56.04AA

(rule 56.04A)

In the Supreme Court of Newfoundland and Labrador
Trial Division

Caveat

In the Estate of _______________, of the _______________
of _______________ in the Province of ________________,
_______________, deceased, who died on or about the _______________ day of _______________, ______.
(occupation)

The undersigned opposes the issuing of a grant of Letters of Probate or Letters of Administration.  No action shall be taken with respect to this Estate until the undersigned has been notified and given an opportunity to be heard.

Dated at _______________, Newfoundland and Labrador, this _______________ day of _______________, 20___.

 

 

 

Person entering Caveat or
Solicitor for Caveator

 

 

 

 

 

Address for Service:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Telephone No. _____________


Form 56.04AB

(rule 56.04A)

In the Supreme Court of Newfoundland and Labrador
Trial Division

Withdrawal of Caveat

In the Estate of _______________, of the _______________
of _______________ in the Province of ________________,
_______________, deceased, who died on or about the _______________ day of _______________, ______.
(occupation)

The undersigned hereby withdraws the Caveat entered in this Estate.

Dated at _______________, Newfoundland and Labrador, this _______________ day of _______________, 20___.

 

 

 

Person withdrawing Caveat or
Solicitor for Caveator

 

 

 

 

 

Address for Service:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Telephone No. _____________

Note:  Upon the filing of this Withdrawal of Caveat, the Caveat entered in this estate will be of no further force or effect.


 

Commencement

        4. These Rules shall come into force on January 1, 2003.