Probate Fee

Notice to Class Member

Description of the Proceeding

On October 28, 1998, Janet Majnarich commenced a class action against the BC Government for a declaration that the Government's collection of probate fees was unconstitutional, and for return of the probate monies paid by her as executor. On December 22, 1998, the Supreme Court of British Columbia ordered that Alfreda Howard be joined as a Plaintiff to Ms. Majnarich's action.

On March 15, 1999, the Supreme Court of British Columbia ruled that this action may proceed as a class action and that Alfreda Howard may act as representative plaintiff in the class action.

The Class Members include all estates in British Columbia:

The claim against the Government is for recovery of all amounts paid to the Government by all class members in relation to the Fee.

The class action has two stages. The first stage is resolution of the common issues. The common issues which will be resolved are as follows:

  1. Is the amount payable after April 1, 1997 pursuant to B.C. Reg. 221/90 as amended by B.C. Reg. 90/97 in relation to the grant of probate or letters of administration to an estate with a value in excess of $50,000 a tax?
  2. If the amount payable is a tax, is the tax lawful having regard for the Constitution Act, 1867 (U.K.), 30 & 31 Vict., 31?
  3. If the amount payable is an unlawful tax:
    1. Is recovery of the amount paid permitted to any person?
    2. if recovery is permitted, is it permitted to a person who paid:
      1. without protest prior to October 23, 1998?
      2. under protest prior to October 23, 1998?
      3. without protest after October 22, 1998?
      4. under protest after October 22, 1998?

If these common issues are resolved in favour of the class, the Court will determine what steps class members need to take in order to recover any amounts payable.

Participation in the Class

The lawyers for the representative plaintiff are:

Branch MacMaster (attn: Ward Branch)
1210-777 Hornby Street
Vancouver, British Columbia
V6Z 1S4
Telephone: (604) 654-2988
Facsimile: (604) 684-3429
Email: wbranch@branmac.com
Website: www.branmac.com
John Motiuk
Barrister & Solicitor
Burnaby, British Columbia

Ms. Howard will instruct these lawyers during the common issues stage. If a class member wishes to participate in the common issues stage directly, they must make an application to the Court.

Any person who may be a member of this class and who wishes to receive ongoing information about the status of the class action should contact Branch MacMaster or visit Branch MacMaster's web site www.branmac.com.

Time to Opt Out of the Class Action

All current residents of British Columbia who fall within the definition of the class but who do not want to be a member of this class must opt out of the class by delivering an opt out form to Branch MacMaster by mail post-marked no later than May 14, 1999.

Copies of this notice and the opt out form are being mailed by the government to the address provided in the probate files of all estates which fall with the class definition. However, if you are concerned that the address in such a file is out of date or if you wish to receive a copy of the opt-out form immediately, please contact Branch MacMaster at (604) 654-2988.

All members of the class will be bound by the judgment of the Court on the common issues unless they have opted out of the class.

Financial Consequences of the Class Proceeding

Members of the class will be entitled to the benefit of a successful judgment of the Court on the common issues. If the action is not successful on the common issues, no member of the class will be responsible to pay the costs of the Defendant.

Fee Agreement

Ms. Howard has entered into a fee agreement with Branch MacMaster and John W. Motiuk which provides for the firms to be paid a portion of a settlement or favourable judgment. This fee agreement compensates the firms for legal services rendered and reimburses them for disbursements (such as photocopying expenses) incurred in the litigation. This agreement must be approved by the Court before it is enforceable. Once approved by the Court, the same fee agreement will apply to all class members.

If no money is recovered in any settlement or judgment, neither Ms. Howard, Ms. Majnarich, nor any class member is required to reimburse any disbursements or pay any fees to the law firms.

If you have any questions regarding this notice, please contact Branch MacMaster at (604) 654-2988 or by email to wbranch@branmac.com.

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