Pollock v. Manitoba, 2004 MBQB 188

• Judge: Hanssen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 12, 2004
• Jurisdiction: Manitoba
• Citations: 2004 MBQB 188;(2004), 188 Man.R.(2d) 193 (QB)

Pollock v. Man. (2004), 188 Man.R.(2d) 193 (QB)

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. AU.017

Iris Pollock (applicant) v. The Government of Manitoba (respondent)

(CI 04-01-36420; 2004 MBQB 188)

Indexed As: Pollock v. Manitoba

Manitoba Court of Queen's Bench

Winnipeg Centre

Hanssen, J.

August 12, 2004.

Summary:

An executrix was entitled to a general grant of probate. However, she sought to obtain a grant limited to immovable property so as to avoid payment of the probate charge of $75,508 which would be required with respect to the movable property.

The Manitoba Court of Queen's Bench dismissed the application.

Executors and Administrators - Topic 1039

Grant of probate or letters of administration - Application for grant - Limited grant of probate - Section 12 of the Court of Queen's Bench Surrogate Practice Act stated that "[t]he administration of an estate of a deceased person may be limited to either the personal property of the deceased or a part thereof, or the real property or a part thereof, or otherwise as the court thinks fit." - An executrix argued that the plain language of s. 12 gave her the right to a grant of probate limited to the immovable property of an estate - The Manitoba Court of Queen's Bench stated that it was satisfied that the common law rule, that a person entitled to a general grant was not entitled to obtain a limited grant except in special circumstances, was the law in Manitoba - The court reviewed the policy reasons underlying the rule - See paragraphs 7 to 20.

Executors and Administrators - Topic 1039

Grant of probate or letters of administration - Application for grant - Limited grant of probate - An executrix was entitled to a general grant of probate - However, she sought to obtain a grant limited to immovable property so as to avoid payment of the probate charge of $75,508 which would be required with respect to the movable property - The Manitoba Court of Queen's Bench dismissed the application - The court was not satisfied that a saving in the probate charge constituted a special circumstance justifying a limited grant of probate.

Cases Noticed:

Granovsky et al. v. Ontario (1998), 53 O.T.C. 375 (Sup. Ct.), dist. [para. 8].

Silver Estate v. Silver et al., [2000] O.T.C. 680 (Sup. Ct.), dist. [para. 8].

Watts, Re (1860), 1 Sw. & Tr. 538; 164 E.R. 850, refd to. [para. 9].

Somerset, Re, [1867] L.R. 1 P. & D. 350, refd to. [para. 9].

Sadler Estate, Re (1991), 114 N.B.R.(2d) 262; 289 A.P.R. 262 (Prob. Ct.), refd to. [para. 9].

Watson, Re (1858), 164 E.R. 651, refd to. [para. 13].

Baldwin, Re, [1903] P. 61, refd to. [para. 13].

Von Brentano Estate, Re, [1911] P. 172, refd to. [para. 13].

Statutes Noticed:

Court of Queen's Bench Surrogate Practice Act, R.S.M. 1987, c. C-290; C.C.S.M., c. C-290, sect. 12 [para. 6].

Authors and Works Noticed:

Macdonell, Sheard and Hull, Probate Practice (4th Ed. 1996), p. 252 [para. 11].

Sunnocks, J.H.G., Martyn, J.G. Ross, and Garnett, K.M., Williams, Mortimer and Sunnocks on Executors, Administrators and Probate (17th Ed. 1993), pp. 233 to 238 [para. 11].

Tristam and Coote, Probate Practice (26th Ed. 1983), p. 333 [para. 11].

Counsel:

M.D. Werier and D.C. Yale, for the applicant;

Brian T. Jones, for the respondent.

This application was heard before Hanssen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 12, 2004.