Probate Fees — pay them "under protest"

November 9, 1998

In its recent decision in Eurig Estate (Re) (File No. 25866, October 22, 1998), the Supreme Court of Canada held that Ontario probate fees are, in fact, a direct tax and as such may only be imposed by the legislature. The Court held that probate fees in Ontario, which were imposed by regulation, are invalid as the Lieutenant Governor in Council cannot impose a new tax ab initio without the authorization of the legislature. The Court suspended the declaration of invalidity for six months to enable the province to address the issue.

Ms. Eurig was, however, entitled to a refund of the probate fees paid.

The probate fee system in British Columbia is similar to that in Ontario. As in Ontario, British Columbia probate fees are a product of regulation and not (directly) of the legislature. Accordingly, the principles set out in Eurig appear applicable in British Columbia. It is unclear what steps the B.C. government may take in response to the Eurig decision. The Probate Registry has, however, indicated that probate files will continue to have fees assessed as prescribed in Appendix C of the Supreme Court Rules and that refunds will not be issued on the basis of Eurig.

In Eurig, the Court refunded the fees paid by Ms. Eurig because payment had been made "under protest." Because it is unknown how the British Columbia government may respond to Eurig, it is prudent to make any payment of probate fees under protest.

It is suggested that language similar to the following be included in a covering letter to the Registrar when applications are made:

"The enclosed payment is made under protest as the applicant is compelled to obtain a grant and the Registry has advised that grants will only be issued upon payment of the prescribed "fee." Accordingly, payment is made under protest and without prejudice to the applicant’s right to claim reimbursement on the basis of the Supreme Court of Canada decision in Eurig Estate (Re), or on other grounds."

Please direct any questions or comments to Claims Counsel Kerry Sheppard (tel. (604) 443-5743) or Stuart Cameron (tel. (604) 443-5764) (or toll-free in B.C. 1-800-903-5300), at the Lawyers Insurance Fund.