B.C. notaries' probate bid ends at top court

The Supreme Court of Canada has refused to hear an appeal by a notary public who was ordered to stop probating wills, thereby leaving standing the decisions of the B.C. Supreme Court and B.C. Court of Appeal that notaries in B.C. are not entitled to probate wills or to prepare documents relating to the estate of a deceased person.

The B.C. Supreme Court ordered an injunction against Sparwood notary public Marian Gravelle in 1998 after finding she had engaged in the unauthorized practice of law by offering to assist, for a fee, a member of the public in obtaining letters of administration: Law Society of British Columbia v. Gravelle (October 9, 1998) a decision of Mr. Justice Bauman (BCSC Vancouver Registry A964141).

That Court noted that the Legal Profession Act provides a definition of the practice of law as including the "drawing, revising or settling ... a will, deed of settlement, trust deed, power of attorney or a document relating to any probate or letters of administration or the estate of a deceased person."

The Notaries Act, which sets out the notaries' scope of practice, has no similar provision and does not expressly authorize a notary to advise on probate matters. Moreover, in a historical context, there was no tradition of probate practice by notaries when English common law was received in British Columbia in 1858.

The B.C. Court of Appeal dismissed an appeal of the Supreme Court decision last year: Law Society of British Columbia v. Gravelle 2001 BCCA 383.