Wills and Estates Update – Notaries, Trusts and Probate

In a recent case heard before the Supreme Court of British Columbia, The Law Society of British Columbia v. MacDonald, 2013 BCSC 1204, the court provided helpful guidance on the scope of wills and estates services which notaries in British Columbia may provide in accordance with the Notaries Act.

It is well established in B.C. that notaries may not draft wills which create trusts where the beneficiaries receive their entitlement after the age of majority (Re Horvath, [2000] B.C.J. No. 169 (S.C.). It is also well established that notaries may not prepare applications to probate a will (see Gravelle  57 B.C.L.R. (3d) 388 (S.C.) aff’d 2001 BCCA 383).

In MacDonald, the notary had drafted a will creating a life estate and had assisted in probate matters for her clients.

Concerning her drafting of a life estate, the notary advised that in future she would make use of certain life estate clauses that had been provided to her at a presentation for notaries prepared by lawyers which she believed complied with s. 18 of the Notaries Act.

In both instances, the court found the Notary to be engaged in the practice of law and therefore in contravention of the Legal Profession Act.

What lessons can be taken from this ruling for notaries?

1.                   Notaries cannot draft wills which create trusts where the beneficiaries receive their entitlement after the age of majority. A Life Estate is a form of trust which usually vests in beneficiaries after the age of majority. Notaries should refrain from drafting wills that contain Life Estates unless they are certain that such drafting complies with Subsection 18(b) of the Notaries Act.

2.                   Notaries cannot provide legal advice regarding obtaining grants of probate or letters of administration or advise on disputes relating thereto for their clients.

If you have questions about trusts, life estates, or matters relating to estate administration, please feel free to contact one of the lawyers in our Wealth Preservation + Estate Litigation Practice Group.

Special thanks to David Watts, Notary Public for his assistance in preparing this blog.

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