Probate Fee

Notice to Class Member

Please read this notice carefully.

Who should read this notice?

You are receiving this notice because an estate you control may be a class member in the probate fee class action called Howard v. B.C.

The class includes:

All estates in British Columbia:

  1. in which the gross value of all of the real and personal property of the deceased physically situate in British Columbia passing to the personal representative of the estate exceeded $50,000;
  2. who paid a probate fee:

What was the class action about?

The class action sought to challenge the constitutionality of B.C.'s probate fees.

The Plaintiff Alfreda Howard argued that the probate fees were in effect a tax, and that the fees were therefore unlawful since they were implemented by Cabinet rather than receiving the approval of the B.C. legislature.

The court approved the case going forward as a class action on March 14, 1999.

What has happened since?

After the case became a class action and before the case went to trial, the government passed the Probate Fee Act through the legislature. The Probate Fee Act corrected the alleged problem into the future, and retroactively imposed fees in the same amount as the fees challenged in the class action.

After analyzing the legal effect of the Probate Fee Act, and after consulting with noted constitutional lawyer Joseph Arvay Q.C., lawyers for the class determined that there was no real prospect for obtaining any recovery for estates because of the enactment of the Probate Fee Act.

The Probate Fee Act allows the government to charge estates the same amount sought to be recovered in the class action. There is legal authority supporting the government's ability to impose retroactive taxes in this way.

What has happened?

Since continuing the case is unlikely to benefit any estate, lawyers for the class have agreed to discontinue the class action. On July 14, 2000, Mr. Justice Pitfield reviewed the situation and ordered that the action be discontinued. The discontinuance is effective ten days after these notices have been mailed to class members.

How does this affect my rights?

Your substantive legal rights are not being affected. However, the class action procedure is not continuing.

Individual estates may still bring their own legal action to challenge the probate fees and the new Probate Fee Act. However, it should be noted that:

  1. individual estates will have to start a new action in order to do so, and
  2. after careful review, lawyers for the class have determined that there is little prospect for estates succeeding in such actions in light of the change in the law.

Limitation periods applicable to claims of individual estates stopped running from the date the class action was commenced (October 28, 1998) and will not start running again until the date the action is discontinued.

What about the representative plaintiff?

The representative plaintiff Alfreda Howard is receiving no special payment for agreeing to discontinue the class action. She agrees with the lawyers for the class that there is little point in pursuing the action.

What about any legal fees?

The government has agreed to pay the expenses and of the legal fees incurred in bringing the case. Branch MacMaster, the lawyers for the class, have agreed to abandon any claim to legal fees other than those paid directly by the government.

Therefore neither the representative plaintiff nor any individual estate is responsible for the payment of any legal fees or costs associated with the litigation.

Will I get any further notices?

Pursuant to the order of Mr. Justice Pitfield, this will be the last notice.

What if I still have questions?

In you require additional information, you may contact Branch MacMaster by calling the firm's legal assistant Cathy Barzo at 604-654-2952, or by email to Ms. Barzo or lawyers Ward Branch and Don Lebans at the following addresses: cbarzo@branmac.com, delebans@branmac.com, and wbranch@branmac.com.

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