Pollock v. Manitoba, 2006 MBCA 78

• Judge: Huband, Twaddle and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 03, 2005
• Jurisdiction: Manitoba
• Citations: 2006 MBCA 78;(2006), 205 Man.R.(2d) 7 (CA)

Pollock v. Man. (2006), 205 Man.R.(2d) 7 (CA);

    375 W.A.C. 7

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JL.018

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

(AI 05-30-06091; 2006 MBCA 78)

Indexed As: Pollock v. Manitoba

Manitoba Court of Appeal

Huband, Twaddle and Freedman, JJ.A.

June 30, 2006.

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, in a decision reported at 188 Man.R.(2d) 193, dismissed the application. The executrix appealed.

The Manitoba Court of Appeal dismissed the appeal.

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 Appeal reviewed the history of the legislation and the case law and held that the practice of confining limited grants of probate to cases where strong reason required them had been consistently applied - The wording of s. 28 suggested a legislative intent to make no change to the practice regarding limited grants - The presumption against an unintended change in law or practice was strong - See paragraphs 8 to 21.

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 of probate limited to immovable property under s. 12 of the Court of Queen's Bench Surrogate Practice Act so as to avoid payment of the probate charge of $75,508 which would be required respecting the movable property - A motions judge dismissed the application - The Manitoba Court of Appeal held that the motions judge was entirely right in ruling that a limited grant could not be justified in this case - The saving of probate fees was not a sufficiently strong reason to justify a limited grant - Nor was a limited grant a money-saving device contemplated by the legislation - See paragraphs 22 and 23.

Statutes - Topic 2259

Interpretation - Presumptions and rules in aid - Against alteration of law - [See first Executors and Administrators - Topic 1039 ].

Cases Noticed:

Watts, Re (1860), 1 Sw. & Tr. 538; 164 E.R. 850, refd to. [para. 15].

Somerset, Re, [1867] L.R. 1 P. & D. 350, refd to. [para. 16].

Prothero, Re, [1874] 3 P. & D. 209, refd to. [para. 17].

Baldwin, Re, [1903] P. 61, refd to. [para. 18].

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. 8].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), c. 13, pp. 339 [para. 9]; 341 [para. 21].

Counsel:

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

B.T. Jones, for the respondent.

This appeal was heard on October 3, 2005, before Huband, Twaddle and Freedman, JJ.A., of the Manitoba Court of Appeal. Twaddle, J.A., delivered the following judgment for the court on June 30, 2006.