Bunce Estate, Re, (1998) 231 A.R. 240 (SurCt)

• Judge: Lee, J.
• Case Date: October 15, 1998
• Citations: (1998), 231 A.R. 240 (SurCt)

Bunce Estate, Re (1998), 231 A.R. 240 (SurCt)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. NO.009

In The Matter of the Estate of June Irene Bunce;

And In The Matter Of an Application by the Personal Representative for a Grant of Probate

James Vincent Junck (applicant/executor)

(Action No. 108723)

Indexed As: Bunce Estate, Re

Alberta Surrogate Court

Lee, J.

October 15, 1998.

Summary:

The original copy of the deceased's will could not be located. The executor applied for probate of a photocopy of the will under rule 24 of the Surrogate Court Rules.

The Alberta Surrogate Court approved a grant of probate.

Executors and Administrators - Topic 1030

Grant of probate or letters of administra­tion - Application for grant - Where will is lost - [See Executors and Administrators - Topic 1034 ].

Executors and Administrators - Topic 1034

Grant of probate or letters of administra­tion - Application for grant - For copy of will - An executor applied for probate of a photocopy of the will under rule 24 of the Surrogate Court Rules where the original will could not be located - The Alberta Surrogate Court held that a formal proving of the will under rule 24(a) was not required - The court approved a grant of probate where the affidavit evidence ade­quately identified the will - The court considered that: the executor deposed that the deceased confirmed the will's existence shortly before her death; the only other party having a claim was the deceased's son, who deposed that he was unable to locate the will; the deceased's son and the executor had signed an agreement to share the estate equally, notwithstanding that the executor had been left the entire estate; there did not appear to be any other parties that had a claim under the will or through an intestacy; the relatively small size of the estate along with the urgency to close the pending sale of the home.

Wills - Topic 1888

Preparation and execution - Evidence and proof - Lost wills - [See Executors and Administrators - Topic 1034 ].

Cases Noticed:

Perry Estate, Re, [1925] 1 D.L.R. 931 (Ont. C.A.), refd to. [para. 6].

Robinson Estate, Re, [1930] 2 W.W.R. 673 (Alta. Dist. Ct.), refd to. [para. 7].

Dreger Estate, Re (1982), 38 A.R. 44 (N.W.T.S.C.), refd to. [para. 10].

Statutes Noticed:

Rules of Court (Alta.), Surrogate Court Rules, rule 24 [para. 3].

Authors and Works Noticed:

Feeney, Thomas G., The Canadian Law of Wills (1987), vol. 1, p. 135 [para. 5].

Counsel:

Darrel B. Harker, for the appli­cant/executor.

This application was heard before Lee, J., of the Alberta Surrogate Court, who delivered the following decision on October 15, 1998.