BILL 56 An Act to Amend the Probate Court Act

BILL 56

 

An Act to Amend the Probate Court Act

 

 

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Subsection 12(3) of the Probate Court Act, chapter P-17.1 of the Acts of New Brunswick, 1982, is amended by adding "and the tax payable under this Act" after "this Act".

 

2 Paragraph 64(1)(b) of the Act is repealed and the following is substituted:

(b) the tax payable under this Act and probate fees;

3 Subsection 73(1) of the Act is amended by striking out "and the prescribed fees are paid" and substituting "and the tax required under this Act is paid".

4 Section 75 of the Act is repealed and the following is substituted:

75(1) Where fees are payable on the value of the estate of the deceased, they shall be calculated on the value of the whole estate, including the real property as well as the personal estate.

75(2) In calculating the value of the real property there shall be deducted the actual value of any encumbrance on the real property.

5 The Act is amended by adding after section 75 the following:

TAX

75.1(1) A tax determined in accordance with Schedule A is payable to Her Majesty in right of New Brunswick by the estate of a deceased person in respect of the following:

(a) on every grant of probate or letters of administration not being a grant for special or limited purposes, double probate or administration de bonis non administratis;

 

 

(b) on every passing of accounts, including all services in connection with the passing of accounts.

75.1(2) Where tax is payable on the value of the estate of the deceased, it shall be calculated on the value of the whole estate, including the real property as well as the personal estate.

75.1(3) In calculating the value of the real property there shall be deducted the actual value of any encumbrance on the real property.

6 Paragraph 77(b) of the Act is amended by striking out "all fees" and substituting "fees".

 

7 The Act is amended by adding at the end of it the following Schedule:

SCHEDULE A

TAX PAYABLE UNDER SECTION 75.1

1 For the purposes of paragraph 75.1(1)(a), on every grant of probate or letters of administration not being a grant for special or limited purposes, double probate or administration de bonis non administratis, where the value of the estate or the part of the estate being administered

 

 

(a)does not exceed $5,000

 

$ 25.00

     

(b)exceeds $5,000 but not $10,000

 

50.00

     

(c)exceeds $10,000 but not $15,000

 

75.00

     

(d)exceeds $15,000 but not $20,000

 

100.00

     

(e)exceeds $20,000, the sum of $5.00 per $1000 or part thereof of the estate being administered.

   

 

2 For the purposes of paragraph 75.1(1) (b), on every passing of accounts, including all services in connection with the passing of accounts, where the amount of capital and income

(a)does not exceed $20,000

 

$40.00

     

(b)exceeds $20,000, the sum of $2.00 per $1000 or part thereof of the value of the capital and income.

   

 

8(1) Any fee charged before the commencement of this Act pursuant to section 1 or 5 of Appendix A of New Brunswick Regulation 84-9 under the Probate Court Act, chapter P-17.1 of the Acts of New Brunswick, 1982, in respect of a grant of probate or letters of administration, including any fee charged in respect of resealing as provided in subsection 73(1) of that Act, or in respect of a passing of accounts

 

(a) shall be deemed to have been imposed by an Act of the Legislature,

(b) shall be deemed to have been as validly charged and collected as if it had been imposed by an Act of the Legislature, and

(c) is hereby confirmed and ratified.

8(2) Any fee charged before the commencement of this Act pursuant to New Brunswick Regulation 74-190 under the Probate Courts Act, chapter P-17 of the Revised Statutes, 1973, in respect of probate stamps for the purposes of proceedings held in the Court of Probate under that Act,

 

(a) shall be deemed to have been imposed by an Act of the Legislature,

(b) shall be deemed to have been as validly charged and collected as if it had been imposed by an Act of the Legislature, and

(c) is hereby confirmed and ratified.

8(3) Nothing in subsection (1) or (2) shall be taken as providing any indication that any fee described in those subsections was not validly charged or collected.

9 No action, application or other proceeding shall be instituted

(a) to question the nature or validity of any fee described in subsection 8(1) or (2) that was charged or collected, before the commencement of this section, as provided in those subsections, or

(b) to recover any fee described in subsection 8(1) or (2) that was charged or collected, before the commencement of this section, as provided in those subsections.

10(1) Paragraph 4.01(2) of New Brunswick Regulation 84-9 under the Probate Court Act, chapter P-17.1 of the Acts of New Brunswick, 1982, is repealed and the following is substituted:

(2) The applicable tax and fees shall be paid by the party on whose behalf the proceedings are taken and letters shall not be issued until the applicable tax and fees are paid.

 

10(2) Paragraph 4.02(1) of the Regulation is repealed and the following is substituted:

(1) The fees prescribed by Appendix A are payable in respect of proceedings in the Court.

 

10(3) Appendix A of the Regulation is amended

(a) by repealing section 1;

(b) in section 2 of the French version by striking out "lettres d’une nature spéciale ou pour une fin déterminée, de lettres supplémentaires d’homologation ou" and substituting "lettres accordées à des fins spéciales ou restreintes, de lettres supplémentaires d’homologation ou de lettres";

(c) by repealing section 5.

 

EXPLANATORY NOTES

Section 1

The existing provision is as follows:

12(3) Each person appointed in accordance with subsection (1) shall be called "Clerk of the Probate Court of New Brunswick for the Judicial District of " and is entitled to receive on behalf of the Province the fees prescribed by regulation under this Act.

 

Section 2

The existing provision is as follows:

64(1) The assets of an estate shall be applied in priority of payment as follows: …

(b) probate fees; …

Section 3

The existing provision is as follows:

73(1) Where letters probate of a will or letters of administration or other legal documents purporting to be of the same nature granted by a court of competent jurisdiction in the United Kingdom, in a province or territory of Canada, in any country of the Commonwealth or in any state or territory of the United States of America or a certified copy thereof are produced to, and a copy of the original or where a certified copy is produced, the certified copy deposited with a clerk or the Registrar and the prescribed fees are paid as on a grant of letters probate of a will or letters of administration, the letters probate or letters of administration or other legal documents or the certified copy thereof shall, under the direction of the Court, be sealed with the Seal of the Court.

 

 

Section 4

The existing provision is as follows:

75(1) The fees payable upon the value of the estate of the deceased shall be calculated upon the value of the whole estate, including the real property as well as the personal estate.

75(2) In calculating the value of the real property there shall be deducted the actual value of any encumbrance thereon.

Section 5

A tax in respect of those matters described in the new subsection 75.1(1) is payable in accordance with the new Schedule A.

Section 6

The existing provision is as follows:

77 The Lieutenant-Governor in Council may make regulations …

(b) providing for the regulating, fixing and assessing of the fees payable in respect of proceedings in the Court, including a tariff of fees to be allowed solicitors and counsel practising in the Court; …

Section 7

The tax payable for the purposes of the new section 75.1, as enacted by section 5 of this amending Act, is to be determined in accordance with the new Schedule A.

Section 8

Provisions are added in respect of certain fees charged before the commencement of those provisions.

Section 9

No action, application or other proceeding shall be instituted in respect of those matters described in section 9 of this amending Act.

Section 10

The amendments made to New Brunswick Regulation 84-9 under the Probate Court Act are consequential on the amendments made in sections 5 and 7 of this amending Act.