Alberta Gazette — documents gazette 1995 pdf 0630 ii.pdf

documents gazette 1995 pdf 0630 ii.pdf

Alberta — Gazette

Alberta Regulation 125/95

Municipal Government Act

NON-PROFIT ORGANIZATION TAX EXEMPTION REGULATION

Filed: June 2, 1995

Made by the Minister of Municipal Affairs (M.O. L:303/95) pursuant to

section 370 of the Municipal Government Act.

Table of Contents

Definitions 1

General rule 2

Property used for business purposes 3

Exemption under

section 362(n)(

i) of the Act 4

Exemption under

section 362(n)(ii) of the Act 5

Exemption under

section 362(n)(iii) of the Act 6

Exemption under

section 362(n)(iv) of the Act 7

Definitions

1 In this Regulation,

(a) "Act" means the Municipal Government Act;

(b) "non-profit organization" means

(

i) a society, credit union or co-operative established

under a law of Canada or Alberta,

(ii) a corporation that is prohibited from paying

dividends to its members and distributing the assets to its members on a

winding-up, or

(iii) any other entity established under a law of Canada

or Alberta for a purpose other than to make a profit;

(c) "taxation" means taxation under Division 2 of

Part 10 of the

Act.

General rule

2 An exemption from taxation under

section 362(

n) of the Act may apply

(

a) to the whole of a property, or

(

b) to part of a property

that is chiefly used for the purposes that qualify for the exemption.

Property used for business purposes

3 Property or part of a property referred to in

section 362(

n) of the Act

is not exempt from taxation if it is used for business purposes that

compete with any business that is subject to taxation.

Exemption under

section 362(n)(

i) of the Act

4 Property referred to in

section 362(n)(

i) of the Act is exempt from

taxation only if the municipality that owns the property has delegated to

the non-profit organization that holds the property the authority to act as

the representative of the municipality in all matters concerning the

property.

Exemption under

section 362(n)(ii) of the Act

5(1) Property referred to in

section 362(n)(ii) of the Act is exempt from

taxation only if

(

a) the general public is evidently and actively encouraged by the

non-profit organization that holds the property to use the property for the

purposes set out in that section,

(

b) the property is accessible to the general public and the use of

the property is not restricted by virtue of the race, culture, ethnic

origin, age, gender or religious belief of any individual or as a result of

a fee or other criterion that by its very nature restricts an individual

from using the property, and

(

c) where the use of the property is restricted to members of the

non-profit organization that holds the property, the membership in that

organization is not restricted by virtue of the race, culture, ethnic

origin, age, gender or religious belief of any individual or as a result of

a fee or other criterion that by its very nature restricts an individual

from being a member in that organization.

(2) Property or part of a property referred to in

section 362(n)(ii) of

the Act is not exempt from taxation if

(

a) the property is used to satisfy the interests of an individual

or group of individuals that has a specific interest or objective, or

(

b) the income or profits of the non-profit organization that holds

the property are paid to a member or shareholder of that organization other

than as wages.

Exemption under

section 362(n)(iii) of the Act

6(1) Property referred to in

section 362(n)(iii) of the Act is exempt from

taxation only if

(

a) the resources of the non-profit organization that holds the

property are devoted to the charitable or benevolent purpose for which the

property is used,

(

b) the non-profit organization that holds the property uses the

property to provide to individuals or groups of individuals services that

are perceived to be, due to their charitable or benevolent nature, for the

general public benefit and the services are provided without monetary gain

or benefit to that organization, and

(

c) the use of the property is not restricted as a result of a fee

that by its very nature restricts an individual from using the property.

(2) Property or part of a property referred to in

section 362(n)(iii) of

the Act is not exempt from taxation if the income or profits of the

non-profit organization that holds the property are paid to a member or

shareholder of that organization other than as wages.

Exemption under

section 362(n)(iv) of the Act

7 Property referred to in

section 362(n)(iv) of the Act is exempt from

taxation only if the accommodation provided to senior citizens is

subsidized accommodation as defined in the General Regulation (Alta. Reg.

213/94).

Alberta Regulation 126/95

Apprenticeship and Industry Training Act

APPRENTICESHIP PROGRAM AND CERTIFICATE

RECOGNITION AMENDMENT REGULATION

Filed: June 7, 1995

Made by the Alberta Apprenticeship and Industry Training Board pursuant to

section 33(2) of the Apprenticeship and Industry Training Act.

1 The Apprenticeship Program and Certificate Recognition Regulation

(Alta. Reg. 1/92) is amended by this Regulation.

Section 3 is amended

(

a) in subsection (1) by striking out "after December 31, 1991";

(

b) in subsection (2) by striking out "that is granted after

December 31, 1991 it is" and substituting ", it is";

(

c) by repealing subsection (3).

Section 4 is amended by repealing subsection (2) and by renumbering

section 4(1) as

section

Section 5(

b) is amended by striking out "to the satisfaction of the

Executive Director" and substituting "subject to

section 21".

Section 6(

b) is amended by striking out "to the satisfaction of the

Executive Director" and substituting "subject to

section 21".

Section 8 is repealed and the following is substituted:

Entrance requirements

8(1) Where a person is required to do so by the applicable trade

regulation, that person must as an entrance requirement in respect of the

designated trade take and successfully complete one or more entrance

examinations.

(2) Where a person is unable to establish that the person has met

the educational requirements that are prescribed in the applicable trade

regulation, that person must, if requested to do so by the Executive

Director, take one or more examinations as an entrance requirement in

respect of the designated trade and successfully complete those

examinations.

Section 10 is amended by adding the following after subsection (2):

(3) Where

(

a) an employer is satisfied that a prospective

apprentice has had previous work experience or on the job training in

respect of tasks, activities or functions that are carried out in the

trade, and

(

b) in the opinion of the employer, the apprentice is

able to carry out those tasks, activities or functions in a satisfactory

manner,

the employer may recommend that credit be granted in respect of that

apprentice for that previous work experience or on the job training.

Section 11 is amended

(

a) in subsection (3)(

c) by striking out "completed" and

substituting "acquired";

(

b) by repealing subsection (4) and substituting the following:

(4) The Executive Director shall not reduce the term of

apprenticeship to less than 12 months except where a person has, in the

opinion of the Executive Director, successfully participated in an

apprenticeship program in Alberta.

Section 12 is repealed and the following is substituted:

Approval to enter apprenticeship program

12(1) If the Executive Director

(

a) is satisfied that the prospective apprentice meets

or is of the opinion that the prospective apprentice will be able to meet

the qualifications of an apprentice in a designated trade, and

(

b) is satisfied the person who is to employ the

prospective apprentice meets the qualifications to employ an apprentice in

that trade,

the Executive Director may in writing approve the prospective

apprentice's entrance into the apprenticeship program.

(2) If an apprentice does not meet the educational or other entrance

requirements prescribed by the applicable trade regulation, the apprentice

is not eligible to engage in the formal instruction required under the

apprenticeship program until the apprentice meets those requirements.

(3) Notwithstanding subsection (2), if a person does not meet the

educational or other entrance requirements prescribed by the applicable

trade regulation, the Executive Director may

(

a) permit the person to enter into the apprenticeship

program, and

(

b) allow the person, commencing on the day that the

person enters into the apprenticeship program, a period of time within

which the person must meet the educational or other entrance requirements.

(4) For the purposes of subsection (3)(b), the Executive Director

may, depending on the circumstances, prescribe a period of time of not less

than 90 days nor greater than 365 days within which a person must meet the

educational or other entrance requirements applicable to that person's

apprenticeship program.

(5) If a person to whom subsection (4) is applicable does not meet

the educational or other entrance requirements for the apprenticeship

program within the period of time allowed by the Executive Director, the

Executive Director may, after consulting with

(

a) the local apprenticeship committee in the

designated trade, or

(

b) the provincial apprenticeship committee in the

designated trade if there is not a local apprenticeship committee in that

designated trade,

cancel the registration of that person's contract of apprenticeship.

Section 13(3) is repealed.

Section 14 is repealed.

Section 15 is amended

(

a) in subsection (2) by striking out "on the recommendation of"

and substituting "after consulting with";

(

b) by repealing subsections (3) and (4).

Section 17 is amended by repealing clause (

h) and substituting the

following:

(

h) to review with the apprentice's direct supervisor, at the

completion of each period of apprenticeship, the hours worked and the on

the job training completed during that period;

(h.1) to ensure that the apprentice's record book is kept up to date;

(h.2) to send the apprentice's record book, or otherwise ensure that

it is sent, to the Minister on the successful completion of each period of

the apprentice's apprenticeship program;

Section 18 is amended

(

a) in clause (

a) by adding "for" after "to provide";

(

b) in clause (

b) by striking out "applicable trade regulation" and

substituting "regulations".

15 Sections 20 and 21 are repealed and the following is substituted:

Employment of apprentices

20(1) The number of apprentices that a person may employ shall be

determined in accordance with the applicable trade regulation.

(2) Where

(

a) a person who is a certified journeyman or an

uncertified journeyman or employs a certified journeyman or an uncertified

journeyman in a designated trade is eligible to employ an apprentice in the

trade, and

(

b) the number of additional apprentices that the

person may employ is based on the number of additional certified journeymen

or uncertified journeymen employed by that person,

that person shall, in determining the number of additional

apprentices that may be employed, take into account only those certified

journeymen or uncertified journeymen who will provide supervision with

respect to the work of the apprentices.

(3) Notwithstanding subsections (1) and (2), if

(

a) a person carries on business in respect of which

the person must use the services of, as the case may be, a certified

journeyman or an uncertified journeyman in a designated trade,

(

b) at a location at which the person carries on that

business there is an insufficient number of, as the case may be, certified

journeymen or uncertified journeymen in the trade to provide those

services, and

(

c) due to that lack of a sufficient number of

certified journeymen or uncertified journeymen in the trade the person is

unable to carry out the work to which the person is committed,

the Executive Director may, subject to any conditions that the

Executive Director considers appropriate, permit the person to employ, in

addition to the number of apprentices authorized under the applicable trade

regulation, extra apprentices so as to enable the person to carry out the

work to which the person is committed.

(4) A person shall not employ an apprentice except in accordance

with the applicable trade regulation and this Regulation.

Supervision and training

21(1) In this section, "supervisor" means,

(

a) in the case of a compulsory certification trade, a

person who is

(

i) a certified journeyman in the

compulsory certification trade, or

(ii) a certified journeyman or an

uncertified journeyman in another designated trade where the task, activity

or function that is being carried out by an apprentice in the compulsory

certification trade is the same task, activity or function that is also

carried out by a certified journeyman or uncertified journeyman in that

other designated trade;

(

b) in the case of an optional certification trade, a

person who is

(

i) a certified journeyman or an

uncertified journeyman in the optional certification trade, or

(ii) a certified journeyman or an

uncertified journeyman in another designated trade where the task, activity

or function that is being carried out by an apprentice in the optional

certification trade is the same task, activity or function that is also

carried out by a certified journeyman or uncertified journeyman in that

other designated trade.

(2) In order for a person to be able to provide to an apprentice the

supervision and training for the purposes of this or an applicable trade

regulation,

(

a) the supervision must be provided by a supervisor

who

(

i) is the employer of the apprentice,

(ii) is an employee of the employer of the

apprentice, or

(iii) if not employed by the employer of the

apprentice, is a person with whom that employer has made arrangements for

the supervision of the apprentice,

(

b) the supervision must, to the satisfaction of the

Executive Director, be of such a nature that

(

i) the apprentice being supervised has

access to the supervisor so as to be able to communicate with the

supervisor in respect of the task, activity or function being supervised,

and

(ii) the supervision provided to the

apprentice by the supervisor is sufficient so that the supervisor supplies

to the apprentice the technical information, knowledge and guidance that is

necessary for the apprentice to develop skills in the task, activity or

function that is being supervised to a standard of skill and competence

that is expected of a journeyman in the trade or of a person who has

reached the apprentice's level in the apprenticeship program, as the case

may be,

and

(

c) the training and guidance must, to the satisfaction

of the Executive Director, be provided to the apprentice in such a manner

that the apprentice will be able to

(

i) acquire the technical information and

knowledge, and

(ii) develop the skills

in the tasks, activities and functions that are

expected of a journeyman in the trade or of a person who has reached the

apprentice's level in the apprenticeship program, as the case may be.

Section 22(2) is amended by repealing clause (

c) and substituting the

following:

(

c) in the case where the supervision has been provided by someone

other than the apprentice's employer or an employee of the apprentice's

employer, on completion of the training in the tasks, activities and

functions for the trade.

17 The following is added after

section 22:

Excess hours

22.1(1) Where at the end of a period of an apprenticeship program an

apprentice has acquired more hours of on the job training than are required

for that period, the Executive Director may, subject to subsection (2),

credit those excess hours of on the job training against the number of

hours of on the job training that are required for the next subsequent

period of the apprenticeship program.

(2) The number of excess hours of on the job training that may be

credited under subsection (1) against the number of hours of on the job

training that are required in the next subsequent period of an

apprenticeship program

(

a) shall not exceed 480 hours, and

(

b) may only be credited if at the end of the period to

which they are to be credited the apprentice has not completed the number

of hours of on the job training that are required for that period.

Requirements to advance

22.2 An apprentice shall not advance from one period of an

apprenticeship program to the next subsequent period of the apprenticeship

program until

(

a) the apprentice has successfully

(

i) acquired the on the job training

required for that period,

(ii) completed the formal instruction

required for that period, and

(iii) completed all the examinations required

for that period,

(

b) the date for the completion of that period has

expired, and

(

c) the Minister has endorsed in the apprentice's

record book the fact that the apprentice has completed all the requirements

for that period.

Section 24(

a) is amended by striking out "contents and".

Section 26(

d) is amended by repealing subclause (ii) and substituting

the following:

(ii) satisfy

(

A) the local apprenticeship committee in the

designated trade, or

(

B) the provincial apprenticeship committee in the

designated trade if there is not a local apprenticeship committee in that

designated trade,

that the apprentice has successfully completed the on the job

training requirements.

Section 28 is repealed.

Section 29(2) is repealed and the following is substituted:

(2) A Certificate of Completion of Apprenticeship that is issued by

another jurisdiction in Canada in a trade that in Alberta is a designated

trade shall be recognized for the purposes of the Act as being the

equivalent of a trade certificate granted under the Act if the Certificate

of Completion of Apprenticeship

(

a) was issued in a trade prior to that trade's

participating in the Interprovincial Standards Program,

(

b) was issued in a trade that is not participating in

the Interprovincial Standards Program, or

(

c) was issued in a trade that is participating in the

Interprovincial Standards Program but the formal instruction was provided

in Alberta.

Section 32(5)(

a) is amended by striking out "contents and".

23 The following is added after

section 32:

PART 3

MODIFIED APPRENTICESHIP PROGRAMS

Exceptional circumstances

33(1) Notwithstanding

section 15 or the applicable trade regulation,

if,

(

a) in the opinion of the Executive Director,

exceptional, unique or abnormal circumstances exist in a particular

situation that limits a person's ability to enter into or successfully

complete an apprenticeship program in a designated trade, and

(

b) in the opinion of the Executive Director, the

person's general capabilities are such that the person will with training

be able to successfully work in or perform the tasks, activities or

functions in the designated trade,

the Executive Director may modify the requirements of the

apprenticeship program in that trade in order to accommodate that person.

(2) If the Executive Director modifies the requirements of an

apprenticeship program, the Executive Director may prescribe terms or

conditions to the carrying out of that modified apprenticeship program.

Apprentice-ship re Executive Director

34(1) Notwithstanding

section 7 or 13, where

(

a) a prospective apprentice is eligible to be granted

or has been granted credit under

section 11,

(

b) the prospective apprentice is unemployed, and

(

c) in the opinion of the Executive Director, entering

into a contract of apprenticeship between the Executive Director and the

prospective apprentice will enable the prospective apprentice to enter into

an apprenticeship program,

the Executive Director may at the request of the prospective

apprentice enter into a contract of apprenticeship with the prospective

apprentice.

(2) A contract of apprenticeship that is entered into under

subsection (1) may not remain in force for more than one year from the day

that the contract of apprenticeship is entered into unless within that year

the contract of apprenticeship is transferred from the Executive Director

to a person who is eligible to employ an apprentice.

Apprenticeship re self- employment

35 Notwithstanding

section 7, 13 or 34, where

(

a) a prospective apprentice is self-employed, and

(

b) the prospective apprentice's self-employment

primarily involves working in or performing tasks, activities or functions

in an optional certification trade,

the prospective apprentice may, with respect to that optional

certification trade, enter into a contract of apprenticeship with another

person if the prospective apprentice has made arrangements for supervision

and training under

section 21.

High school apprentice

36(1) Where a person is enrolled as a full time student at a high

school and is taking courses for the purpose of acquiring or up-grading a

high school diploma and

(

a) that person meets the entrance requirements to be

an apprentice in a designated trade, and

(

b) that person's employer or prospective employer

meets the requirements set out in sections 5 or 6, as the case may be,

that person may enter into a contract of apprenticeship in respect of

that designated trade.

(2) While participating in an apprenticeship program under this

section, an apprentice

(

a) instead of attending formal instruction under the

applicable trade regulation, may, by means of high school courses, receive

instruction in respect of theoretical or technical topics that are

applicable to the apprenticeship program, and

(

b) must participate in on the job training of the type

that is required under the applicable trade regulation.

(3) Notwithstanding sections 18(

c) and 19, an employer employing an

apprentice under this

section may, subject to the Employment Standards

Code, pay wages to that apprentice, while that apprentice is participating

in the apprenticeship program under this section, that are less than those

provided for under the applicable trade regulation.

(4) When an apprentice who has been participating in an

apprenticeship program under this

section ceases to be a full time student

enrolled in a high school, that apprentice may continue to be an apprentice

in the apprenticeship program under the applicable trade regulation.

(5) Where an apprentice who has been participating in an

apprenticeship program under this section,

(

a) ceases to participate in the apprenticeship program

under this section, but

(

b) continues to participate in the apprenticeship

program under the applicable trade regulation,

the Executive Director may, with respect to the formal instruction

required under the applicable trade regulation, grant credit to the

apprentice for the instruction received pursuant to subsection (2)(a).

(6) For the purposes of this section, a person who is a full time

student enrolled in a high school does not lose that status by reason only

that the person is not attending high school classes

(

a) during the summer vacation,

(

b) during a period of time that intervenes between the

conclusion of one semester and the beginning of the next semester, or

(

c) during a period of time that the high school is

closed or not otherwise offering courses.

Alberta Regulation 127/95

Credit Union Act

CREDIT UNION (PRINCIPAL) AMENDMENT REGULATION

Filed: June 14, 1995

Made by the Lieutenant Governor in Council (O.C. 438/95) pursuant to

section 82(4) of the Credit Union Act.

1 The Credit Union (Principal) Regulation (Alta. Reg. 249/89) is amended

by this Regulation.

2 The following is added after

section 25.1:

Idem - where assets do not exceed $500 000 000

25.2(1) Pursuant to

section 82(4) of the Act, the board of a credit

union with assets not exceeding $500 000 000 as at the end of the previous

fiscal year shall place before the members, at the next annual general

meeting held after the commencement of this

section and at least at every

fifth annual general meeting thereafter, a resolution in the following

form:

"BE IT RESOLVED THAT (name of credit union) disclose

the individual remuneration and benefits of the following of its executive

managers as a notation to its annual financial statements in the form set

out in

Schedule 1 to the Credit Union (Principal) Regulation:

(Names or positions of executive managers whose

remuneration and benefits to be disclosed)."

(2) Section 25.1(3) applies where remuneration is to be disclosed as

a result of subsection (1).

3 This Regulation comes into force on June 15, 1995.

Alberta Regulation 128/95

Teachers' Retirement Fund Act

Interpretation Act

PENSION ADJUSTMENT REGULATION, 1993 REPEAL REGULATION

Filed: June 14, 1995

Made by the Lieutenant Governor in Council (O.C. 454/95) pursuant to

section 58 of the Teachers' Retirement Fund Act and

section 23 of the

Interpretation Act.

1 The Pension Adjustment Regulation, 1993 (Alta. Reg. 8/93) is repealed.

------------------------------

Alberta Regulation 129/95

Agriculture Financial Services Act

AGRICULTURE FINANCIAL SERVICES AMENDMENT REGULATION

Filed: June 14, 1995

Made by the Lieutenant Governor in Council (O.C. 457/95) pursuant to

sections 17 and 37 of the Agriculture Financial Services Act.

1 The Agriculture Financial Services Regulation (Alta. Reg. 174/94) is

amended by this Regulation.

2 The following is added after

section 15:

Other assistance

15.1(1) In this section, "investor" means a person or group of

persons who, in the opinion of the Corporation,

(

a) has made an investment of money, goods or services

that will generally advance the interests of agriculture, or

(

b) on the receipt of assistance under this section,

will make an investment that will generally advance the interests of

agriculture.

(2) The Corporation may in one or more of the following forms

provide assistance not otherwise provided for under the Act or this

Regulation:

(

a) the provision of consulting and advisory services,

including financial analysis and recommendations;

(

b) the provision of clerical, administrative and

management services;

(

c) the appointment of one or more members of the Board

or officers or employees of the Corporation to the board of directors or a

board of management of

(

i) a person who is eligible to receive

assistance under this section, or

(ii) an investment fund;

(

d) acting as an agent or a trustee for

(

i) a person who is eligible to receive

assistance under this section, or

(ii) an investment fund.

(3) The following persons are eligible to apply to the Corporation

to receive assistance under this section:

(

a) borrowers;

(

b) primary producers;

(

c) owners of associated businesses or persons engaged

in agricultural industries;

(

d) investors;

(

e) lenders.

(4) The Corporation may provide the assistance described in this

section by itself or jointly with one or more other persons or governments.

(5) For the purposes of this section, sections 8 and 9 do not apply

to persons referred to in subsection (3)(c), (

d) and (e).

Alberta Regulation 130/95

Surrogate Court Act

Dependent Adults Act

SURROGATE RULES

Filed: June 14, 1995

Made by the Lieutenant Governor in Council (O.C. 453/95) pursuant to

section 19 of the Surrogate Court and

section 69 of the Dependent Adults

Act.

Table of Contents

Definitions 1

Rules of Court 2

Reference to another court 3

Application for direction 4

Notice to attend or produce 5

Venue 6

Date of affidavit 7

Additional information 8

Forms 9

Part 1

Non-contentious Matters

Division 1

Application for Grant

Grants 10

Preference 11

Limited grant 12

Forms required 13

Will

Void gift 14

Wills and codicils 15

Identification by witness 16

Proving signing of will 17

Will in foreign language 18

Witnesses dead 19

Dated will 20

Minor testator 21

Other documents 22

Formal proof of will 23

Lost will 24

Alterations, etc. 25

Notice Required

Notice of application 26

Unknown beneficiary 27

Bonds

Bonds 28

Dispensation from bond 29

Application re bond 30

Powers of court 31

Personal Representatives

Renunciation 32

Nominations 33

Grant of double probate 34

Grant of re-sealed probate or re-sealed administration 35

Ancillary grant 36

Unadministered property 37

Claimants

Notice to claimants 38

Notice by claimant 39

Verification of claims 40

Valuation of security 41

Contested claims 42

Claims not yet payable 43

Duties of the Clerk

Fees 44

Applications 45

Grants 46

Retention of documents 47

Copies of documents 48

Clerk's certificate 49

Division 2

Administration of the Estates of Minors

Applications 50

Publication 51

Bonds 52

Dispensing with bond 53

Application of rules 54

Part 2

Contentious Matters

Division 1

General

Application 55

Parties 56

Persons interested in the estate 57

Commencement of action 58

Documents to be served 59

Service 60

Notice 61

Representation 62

Proceedings in chambers 63

Procedure at hearing 64

Standing 65

Trial of an issue 66

Time limit 67

Production of testamentary documents 68

Security for costs 69

Time for completion 70

Division 2

Proceedings on Caveats

Caveat against issue of grant 71

Warning to caveator 72

Objection to grant 73

Frivolous or vexatious caveat 74

Division 3

Formal Proof of a Will

Applications 75

Original will lost or destroyed 76

Required documents 77

Persons interested in the estate 78

Action commenced by a person interested in the estate 79

Special applications 80

Order requiring formal probate 81

Parties 82

Hearing in chambers 83

Evidence 84

Trial 85

Order of decisions 86

Order of proceedings 87

Other proceedings 88

Witness fees 89

Powers of the court 90

Order final 91

Appeal 92

Return and revocation of informal grant 93

Division 4

Proof of Death

Proof of death 94

Division 5

Claims on an Estate

Contested claim 95

Application to court 96

Part 3

Accounting

Division 1

General

Requirement for an accounting 97

Contents of financial statements 98

Acceptable documentation 99

Division 2

Releases

Releases 100

Effect of release 101

Bond 102

Division 3

Dispensing with Formal Passing of Accounts

Dispensing with passing accounts 103

Proceeding without notice 104

Court order 105

Objection 106

Division 4

Passing Accounts

Required forms 107

Application by person interested in estate 108

Reply 109

Withdrawal 110

Objection 111

Consent to an accounting 112

Powers of court 113

Notice of objection 114

Examination of accounts by an accountant 115

Access to records 116

Report 117

Part 4

Dependent Adults

Application of

Part 118

Contents of financial statements 119

Acceptable documentation 120

Required forms 121

Application by an interested person 122

Parties 123

Reply 124

Accounting given 125

Objection to accounting formally 126

Consent to accounting formally or filing inventory 127

Powers of court 128

Reference to Public Trustee 129

Examination of accounts by an accountant 130

Access to records 131

Report 132

Approving and dispensing with passing accounts 133

Proceeding without notice 134

Court order 135

Public Trustee 136

Part 5

Transitional, Repeal and Commencement

Application of Rules 137

Deposit of will of a living person 138

Repeal 139

Coming into force 140

Schedule 1 - Legal and Personal Representative Compensation

Schedule 2 - Court Fees

Schedule 3 - Forms

Definitions

1 In these Rules,

(a) "Act" means the Surrogate Court Act;

(b) "beneficiaries" includes persons who receive gifts of any kind

under a will and heirs on intestacy;

(c) "claimants" includes creditors;

(d) "contentious matter" means

(

i) proceedings respecting caveats,

(ii) formal proof of a will,

(iii) proceedings in which the right to obtain or retain

a grant is in dispute, or

(iv) any other matter in dispute that arises in the

administration of an estate to which these Rules apply;

(e) "file" means file with the clerk in the judicial district in

which an application must be made;

(f) "financial statement" means a formal financial report or

statement required to be prepared by a personal representative under Part

(g) "form" means a form in

Schedule 3;

(h) "formal proof of a will" means proof of a will in solemn form;

(i) "minor" includes an unborn child;

(j) "person" includes an organization or society;

(k) "person interested in an estate" means a person referred to in

rule 57;

(l) "personal representative" means an executor of a will or an

administrator or trustee of an estate to which these Rules apply, and

includes a person named as an executor or trustee in a will before a grant

is issued;

(m) "residuary beneficiary" means a person receiving a part or all

of the residue of the estate;

(n) "sign" with reference to a document means the execution of the

document whether by signing or by some other means;

(o) "will" includes any testamentary disposition.

Rules of Court

2(1) The Alberta Rules of Court (Alta. Reg. 390/68), except

Part 34, apply

to an application to the court if the matter is not otherwise dealt with

under these Rules or the context indicates otherwise.

(2) The court may vary any rule in any case where the court decides it is

appropriate to do so.

(3) Subrule (2) does not apply if the rule imposes a duty on the court.

(4) If provision for a procedure or matter is not made in these Rules or

is not included in and cannot be analogized to the Alberta Rules of Court

(Alta. Reg. 390/68), the court may make any order concerning it that is

necessary or appropriate in the circumstances.

Reference to another court

3(1) If at any time the Surrogate Court is of the opinion that a matter

before it is in the jurisdiction of the Court of Queen's Bench, the

Surrogate Court may refer that matter to the Court of Queen's Bench, which

may deal with it without further application.

(2) If at any time the Court of Queen's Bench is of the opinion that a

matter before it is in the jurisdiction of the Surrogate Court, the Court

of Queen's Bench may refer that matter to the Surrogate Court, which may

deal with it without further application.

Application for direction

4 A personal representative or a person interested in an estate may apply

to the court for directions at any time.

Notice to attend or produce

5(1) The court may issue

(

a) a notice to compel attendance or to compel the production of

any relevant documents, or

(

b) a notice of future applications.

(2) The court may

(

a) issue a notice to classes of persons interested in the estate

generally rather than to individuals by name, and

(

b) state the method of service to be used for the notice.

Venue

6(1) An application for a grant must be filed in a judicial district in

which the deceased resided on the date of death unless the court permits

otherwise.

(2) If the deceased resided outside Alberta immediately before dying, an

application for a grant may be filed in any judicial district where the

deceased had property on the date of death.

Date of affidavit

7 An affidavit filed under these Rules may be dated before the date on

which it or any other document is filed.

Additional information

8 On any application to which these Rules apply, the court may require

the applicant to give any additional information that the court decides is

necessary.

Forms

9 The forms in

Schedule 3 are the forms required to be filed under these

Rules.

PART 1

NON-CONTENTIOUS MATTERS

Division 1

Application for Grant

Grants

10(1) The following grants may be applied for under this Part:

(

a) grants that are unlimited and unrestricted, including

(

i) a grant of probate;

(ii) a grant of administration with will annexed (cum

testamento annexo);

(iii) a grant of administration;

(iv) a supplemental grant (cessate);

(

v) a grant of double probate;

(

b) grants that are limited to part of the deceased's property,

including

(

i) a grant of administration of unadministered

property (de bonis non administratis);

(ii) a grant of re-sealed probate with respect to

property in Alberta;

(iii) a grant of re-sealed administration with respect to

property in Alberta;

(iv) a grant of administration limited to specific

property;

(

v) a grant of administration of property not included

in another grant (caeterorum bonorum);

(vi) an ancillary grant;

(

c) grants that are for a limited time, including

(

i) a grant of administration until a will is found;

(ii) a grant of administration during the minority,

absence or mental incompetence of the personal representative (durante

minoritate, absentia, dementia);

(

d) grants that are for a particular purpose only, including

(

i) a grant of administration when the validity of a

will is in question (pendente lite);

(ii) a grant of administration for the purpose of

litigation (ad litem);

(iii) a grant of administration for the preservation of

property (ad colligendum bona defuncti);

(iv) a grant of administration limited to a specified

matter.

(2) The court may issue any grant that is not referred to in subsection

(1) that the court considers proper in the circumstances.

Preference

11(1) Preference must be given to an applicant for a grant of probate or

administration with will annexed in the following order unless the court,

on application, orders otherwise:

(

a) a personal representative named in a will;

(

b) a residuary beneficiary named in a will;

(

c) a life tenant of the residue in a will;

(

d) an heir on intestacy, excluding the Crown, if the residue is

not completely disposed of in a will;

(

e) a beneficiary receiving a specific gift in a will;

(

f) a contingent beneficiary of the residue in a will;

(

g) a contingent beneficiary of a specific gift in a will;

(

h) the Crown in right of Alberta.

(2) Preference must be given to an applicant for a grant of administration

in the following order unless the court, on application, orders otherwise:

(

a) the husband or wife of the deceased;

(

b) a child of the deceased;

(

c) a grandchild of the deceased;

(

d) issue of the deceased other than a child or grandchild;

(

e) a parent of the deceased;

(

f) a brother or sister of the deceased;

(

g) a child of the deceased's brother or sister if the child is an

heir on intestacy;

(

h) next of kin of the deceased of closest and equal degree of

consanguinity who are heirs on intestacy and who are not otherwise referred

to in this subsection;

(

i) a person who has an interest in the estate because of a

relationship with the deceased;

(

j) a claimant;

(

k) the Crown.

(3) Unless the court, on application, orders otherwise, preference must be

given to a person living in Alberta if applicants for a grant of

administration have equal priority under subrules (1) or (2) but some live

outside Alberta.

(4) Unless the court, on application, orders otherwise, a grant of

administration must not be given to more than 3 persons at the same time.

Limited grant

12(1) If the grant applied for is limited in any manner, the limitation

must appear clearly on the application.

(2) If the grant given is limited in any manner, the limitation must

appear clearly on the grant.

Forms required

13(1) An applicant for a grant of probate or a grant of administration

with will annexed

(

a) must file the following forms:

(

i) Form NC 1;

(ii) Form NC 2;

(iii) Form NC 3

Schedule 1;

(iv) Form NC 4

Schedule 2;

(

v) Form NC 8;

(vi) Form NC 5

Schedule 3;

(vii) Form NC 6

Schedule 4;

(viii) Form NC 7

Schedule 5;

(ix) Form NC 19;

(

x) Form NC 27;

(

b) if the circumstances require, must file the following forms:

(

i) Form NC 20;

(ii) Form NC 17;

(iii) Form NC 22;

(iv) Form NC 23;

(

v) Form NC 24;

(vi) Form NC 12;

(vii) Form NC 14;

(viii) Form NC 24.1;

(ix) Form NC 25.

(2) An applicant for a grant of administration or a limited grant of

administration

(

a) must file the following forms:

(

i) Form NC 1;

(ii) Form NC 2;

(iii) Form NC 3

Schedule 1;

(iv) Form NC 5

Schedule 3;

(

v) Form NC 6

Schedule 4;

(vi) Form NC 7

Schedule 5;

(vii) Form NC 21;

(viii) Form NC 27;

(

b) if the circumstances require, must file the following forms:

(

i) Form NC 17;

(ii) Form NC 22;

(iii) Form NC 23;

(iv) Form NC 24;

(

v) Form NC 15;

(vi) Form NC 16;

(vii) Form NC 24.1;

(viii) Form NC 25.

(3) An applicant for a grant who is an attorney entitled by law to make

the application must file the following forms and any relevant forms

referred to in subrule (1) or (2):

(

a) Form NC 28;

(

b) Form NC 29.

(4) An applicant for a grant of double probate must file the following

forms and any relevant forms referred to in subrule (1):

(

a) Form NC 30;

(

b) Form NC 31.

(5) An applicant for an order to re-seal a foreign grant of probate or

administration or an ancillary grant must file the following forms and any

relevant forms referred to in subrule (1) or (2):

(

a) Form NC 32 application;

(

b) Form NC 33 affidavit;

(

c) a copy, duplicate or exemplification of the foreign grant that

complies with

section 30(3) of the Administration of Estates Act;

(

d) a certificate from the foreign court or some other proof

satisfactory to the court that the foreign grant is unrevoked and fully

effective;

(

e) proof that the signing formalities of any will comply with the

law of Alberta if the deceased owned an interest in land in Alberta.

(6) An applicant must file any forms or documents not referred to in

subrules (1) to (5) that the court or the circumstances of the estate

require.

Will

Void gift

14 If a gift to a beneficiary under a will is void because the

beneficiary is a witness to the will or the spouse of a witness, an

application made with respect to the will must indicate that the gift is

void.

Wills and codicils

15 Subject to

section 4 of the Administration of Estates Act, the

original will and any original codicils must be attached to an application

for a grant of probate or a grant of administration with will annexed.

Identification by witness

16(1) If possible, the applicant, the person before whom the applicant's

affidavit is sworn and the judge must each mark the will, and any codicil,

in such a way that the will is identified for the purposes of the

application and of any affidavit respecting the application.

(2) Any marking on a will must be made below the signatures on either the

front or back of the last page of the will and must not obliterate or

damage the original will.

(3) A witness to a will must prove that the signing formalities were

observed by providing an affidavit in Form NC 8 and the original will must

be an exhibit to the affidavit.

(4) If a will is a holograph will, a person other than the applicant,

unless otherwise ordered by the court, must prove the deceased's

handwriting by providing an affidavit in Form NC 9.

(5) An affidavit sworn by a witness to a will at the time that a will is

signed is acceptable as proof that the formalities were observed, unless

there is an apparent change in the will that the witness has not

satisfactorily explained in the affidavit.

(6) An affidavit referred to in subrule (5) may be in a form other than

Form NC 8 if it is sworn before these Rules come into force.

(7) The court may require any further identification of a will the court

considers necessary if the will is written on more than one piece of paper

and not all pieces are identified by the signature or initials of the

deceased and the witnesses.

(8) The following may be used to mark a will for identification under this

rule:

(

a) respecting

Schedule 2 of the application:

This is the will referred to in

Schedule 2 and in exhibit A to the

affidavit of , a witness to this will.

(Applicant's Signature)

(A Commissioner for Oaths)

(Judge of the Surrogate Court)

(

b) respecting an affidavit of a witness to the will:

This is exhibit A referred to in the affidavit of (deponent's name).

Sworn before me on

(A Commissioner for Oaths)

Proving signing of will

17 If the deceased at the time a will was made

(

a) was blind,

(

b) was illiterate,

(

d) indicated an intention to give effect to the will with a mark,

(

e) indicated an intention to give effect to the will by having

another person sign at the deceased's direction,

the applicant must satisfy the court that the deceased and the witnesses

were present when the will was signed, that the will was fully explained to

the deceased and that the deceased appeared to the witnesses to fully

understand the will.

Will in foreign language

must give an affidavit in Form NC 10 verifying the will's translation into

Witnesses dead

19 If both witnesses to a will are dead or neither witness can give an

affidavit for any reason, the applicant may establish proof that the

formalities required for a will to be valid were observed by an affidavit

(

a) attesting to the authenticity of the signature of the deceased,

(

b) from any person

(

i) who did not sign as a witness,

(ii) who was present during the signing of the will,

and

(iii) who can attest to the circumstances.

Dated will

20(1) If there is no indication on a will of the date on which the will

was signed or reference to the date is imperfect, one of the attesting

witnesses must give evidence of the date on which the will was signed.

(2) If subrule (1) cannot be complied with, the court may require the

applicant

(

a) to give evidence of the signing of the will between 2 stated

dates, and

(

b) to give evidence that a search for a later will has been made

and none was found.

Minor testator

21 If the deceased was under 18 years of age at the time the will was

signed, the applicant must prove that

section 9 of the Wills Act was

complied with at the time the will was signed.

Other documents

22(1) If a will refers to a document or the applicant knows of a document

that may form part of a will, the applicant must give the document to the

court with the application.

(2) If a document referred to in subrule (1) is not given with an

application, the applicant must explain to the satisfaction of the court

why it is not.

Formal proof of will

23 The court may require formal proof of a will under

Part 2 or any other

proof satisfactory to the court, if

(

a) no witness is available to swear the necessary affidavit,

(

b) the appearance of the will indicates an attempt to cancel it by

burning, tearing or any other act of destruction,

(

c) words in the will that might be important have been erased or

obliterated, or

(

d) in the opinion of the court, circumstances require formal proof

of the will.

Lost will

24 If an original will is lost or destroyed but a copy or other evidence

of it exists, the court may admit the copy or other evidence to probate if

(

a) the will is proved formally under Division 3 of

Part 2, or

(

b) in the opinion of the court, the will can be adequately

identified under this Part.

Alterations, etc.

25 If the court directs that any alterations, interlineations, erasures

or obliterations should be omitted from a will, the clerk must omit them

from the copy of the will attached to the grant.

Notice Required

Notice of application

26(1) An applicant must serve notice of any application for a grant

(

a) in Form NC 19, Form NC 20 or Form NC 21 to the persons listed

in Form NC 6 as filed, and

(

b) in Form NC 22, Form NC 23 or Form NC 24 to the appropriate

persons, if any.

(2) A copy of the completed application must be served with a notice

required under subrule (1) on any person who is a residuary beneficiary or

an heir on intestacy.

(3) Service under this rule may be made

(

a) by single registered mail, or

(

b) by serving a lawyer who is authorized to accept service on

behalf of a person.

(4) If a person is required to be served under this rule, proof of the

service must be filed in Form NC 27.

(5) If the applicant does not file proof of service on a person as

required by subrule (4), the court may issue a grant only if it is

satisfied with the reason given by the applicant for not filing the proof

of service as required.

(6) Service under this

section is valid despite a later amendment to the

application that is made at the direction of the court.

Unknown beneficiary

27 If an applicant knows of a particular beneficiary but does not know

the identity or address of the beneficiary, the applicant must file an

affidavit in Form NC 25 to that effect with the application.

Bonds

Bonds

28(1) Subject to subrule (2), a personal representative who is not a

resident of Alberta must provide a bond.

(2) A personal representative is not required to provide a bond if

(

a) the personal representative is resident in Alberta, or

(

b) there are 2 or more personal representatives and one of them is

resident in Alberta.

(3) If a non-resident personal representative must provide a bond, the

bond must be from an insurer licensed under the Insurance Act to undertake

guarantee insurance as defined in that Act.

(4) A bond must be for an amount equal to

(

a) the gross value of the deceased's property in Alberta,

less

(

b) if the court so orders, any amount distributable to the

personal representative as a beneficiary.

Dispensation from bond

29(1) A non-resident personal representative may apply to dispense with

the requirements of rule 28(1) or to reduce the amount of a bond by filing

an affidavit in Form NC 17.

(2) An applicant under this rule may file a beneficiary's consent to

dispensing with a bond in Form NC 18 in support of the application.

Application re bond

30(1) Any person interested in an estate may apply to the court for an

order that a bond be required from a resident personal representative

despite rule 28(2) if the personal representative is not named as executor

in the will.

(2) Any person interested in an estate may apply to the court for an order

requiring a non-resident personal representative to provide a bond despite

rule 28(2), whether or not an application is made under rule 29.

Powers of court

31(1) The court, on an application under rule 29 or 30, may, after

considering the interests of the beneficiaries and claimants of the estate,

(

a) require a bond;

(

b) reduce the amount of a bond;

(

c) dispense with the bond requirements;

(

d) impose conditions on the applicant or any other person

interested in the estate;

(

e) require more information;

(

f) do any other thing that the circumstances require.

(2) The court must not require a lawyer representing an applicant to

undertake to retain control of the property in the estate as a condition of

dispensing with a bond.

Personal Representatives

Renunciation

32(1) If a personal representative named in a will does not wish to or

cannot apply for a grant of probate, the personal representative must

renounce in Form NC 12 or by a method approved by the court.

(2) Before a grant of administration may be issued to an applicant, all

those who rank higher or equal to the applicant under rule 11(2) must

renounce their rights to apply for a grant in form NC 14 or NC 15 or by a

method approved by the court.

(3) The court, at any time, may dispense with a renunciation required by

subrule (1) or (2).

(4) Renunciation under this rule does not by itself prevent a personal

representative named in a will from applying for a grant of administration

with will annexed.

Nominations

33 On an application for a grant of administration or a grant of

administration with will annexed, in accordance with rule 11 the persons

entitled to administration may nominate in Form NC 16 a person to be the

personal representative.

Grant of double probate

34(1) If all the personal representatives named in a will do not apply for

a grant of probate at the same time, the personal representatives who do

not apply

(

a) must reserve their right to apply later by filing Form NC 13 at

the time the initial grant of probate is applied for, and

(

b) may apply by filing Forms NC 30 and NC 31 for a grant of double

probate at any time after filing Form NC 13.

(2) A personal representative to whom subrule (1) applies who does not

comply with subrule (1)(

a) may not apply for a grant of double probate.

(3) An alternative personal representative named in a will may apply for a

grant of double probate if it is necessary for the alternative personal

representative to complete the administration of the estate.

(4) The original grant of probate must be surrendered with an application

under this rule.

Grant of re-sealed probate or re-sealed administration

35(1) An applicant may apply in accordance with rule 13(5) and (6) for an

order resealing a foreign grant, as defined in

section 30 of the

Administration of Estates Act.

(2) An application under subrule (1) must show only the property and debts

of the deceased in Alberta.

(3) A foreign grant is proof without more of the death of the person whose

estate is dealt with in the grant and that

(

a) the signing formalities of the foreign jurisdiction were

observed and the will is the last will of the deceased, or

(

b) the deceased left no will.

Ancillary grant

36(1) An applicant may apply in accordance with rule 13(5) and (6) for an

ancillary grant if

(

a) part of the deceased's property is in Alberta, but the deceased

was not resident in Alberta at the time of death, and

(

b) the deceased was a resident of a jurisdiction that is not

listed in

section 30(1)(

a) of the Administration of Estates Act.

(2) An application under subrule (1) must show only the property and debts

of the deceased in Alberta.

(3) A foreign grant is proof without more of the death of the person whose

estate is dealt with in the grant and that

(

a) the signing formalities of the foreign jurisdiction were

observed and the will is the last will of the deceased, or

(

b) the deceased left no will.

Unadmin- istered property

37(1) If a deceased was the personal representative of an intestate

person, another person may apply for a grant of administration of the

unadministered property of the intestate person.

(2) If a deceased was the personal representative of a testate person and

the deceased did not appoint a personal representative for the deceased's

estate, another person may apply for a grant of administration with will

annexed of the unadministered property of the testate person.

(3) If the personal representative of a testate person resigns and there

is no alternative personal representative named in the will, another person

may apply for a grant of administration with will annexed of the

unadministered property of the testate person.

(4) An applicant under subrule (1), (2) or (3)

(

a) subject to subrule (5), must file the same documents as those

filed in the original application for a grant, and

(

b) must file an affidavit attesting to the details of the original

grant and to the death or resignation of the personal representative.

(5) An application under subrule (1), (2) or (3) must show only the

description and value of the unadministered property on the date of the

application.

(6) The original grant must be surrendered with an application under

subrule (1), (2) or (3).

Claimants

Notice to claimants

38(1) If a personal representative publishes a notice to claimants, the

personal representative must do so in accordance with this rule and may use

Form NC 34.

(2) A notice to claimants must be published in a newspaper

(

a) that is published or circulated in the area where the deceased

usually lived, or

(

b) if the deceased did not usually live in Alberta, that is

published or circulated in the area where a significant amount of the

deceased's property is situated.

(3) A notice to claimants must be published,

(

a) in the case of an estate with a gross value of $100 000 or

less, at least once, or

(

b) in the case of an estate with a gross value of more than $100

000, at least twice with not less than 7 days between the publications.

Notice by claimant

39(1) A claimant must notify a personal representative of the claim not

more than 30 days after the date on which the last notice is published

under rule 38.

(2) A claimant who does not comply with subsection (1) may make a claim

against an estate only with the prior consent of the court.

Verification of claims

40(1) If a personal representative has notice of a claim against the

estate, the personal representative may require the claimant to verify the

claim using a statutory declaration in Form NC 35.

(2) If a claimant does not give a value to any security held by the

claimant wholly or partly to secure the claim, the personal representative

may apply to the court for an order under

section 41(6) of the

Administration of Estates Act by filing a notice of motion in Form C1 and

an affidavit in Form C2.

Valuation of security

41(1) If a dispute arises between a personal representative and a claimant

with respect to the value of security held wholly or partly by the claimant

to secure any claim against the estate, the personal representative may

apply to the court for an order under this rule.

(2) A personal representative must give 3 days' notice of an application

under subrule (1) to the claimant.

(3) On an application by the personal representative, the court may

(

a) require the claimant to file a statutory declaration specifying

the value of the security with the personal representative within the time

limited by the order, and

(

b) declare that the rights of the claimant against the estate in

respect of the claim or the part of it that is secured are barred if the

claimant does not comply with the order under clause (a).

(4) If a claim is secured, the personal representative may

(

a) consent to the claimant's ranking with other claimants for the

amount of the claim after the value of the security specified in the

declaration is deducted, or

(

b) require an assignment of the security to the estate at the

value specified in the declaration of the claimant.

(5) If an assignment is required under subrule (4), the difference between

the value at which the security is assigned to the estate and the amount of

the gross claim of the claimant is the amount for which the claimant ranks

with other claimants.

(6) If the personal representative requires an assignment of a security

under subrule (4), the claimant must assign the security to the estate

after the claimant has received

(

a) payment of the value of the security as specified in the

declaration, and

(

b) interest to the date of payment if the indebtedness bears

interest.

(7) Nothing in this Part prejudices any of the rights or remedies of a

secured claimant before the personal representative has given notice that

an assignment of the security is required and payment is tendered in

respect of that security.

(8) If the claim of a claimant is based on a negotiable instrument that is

not mature or exigible and on which the deceased is indirectly or

secondarily liable, the claim is secured for the purposes of this Part, and

the claimant must give the value of the liability of the person primarily

liable on the instrument as the claimant's security for repayment of the

claim.

(9) If, after the instrument referred to in subrule (8) matures, the

liability is not paid by the person primarily liable, the claimant may

amend and revalue the claim.

Contested claims

Part 2, Division 5 applies if a personal representative does not agree

to all or part of a claim by a claimant against an estate.

Claims not yet payable

43(1) Rules 40, 41 and 42 apply to a claim that is not payable at the time

a grant is issued in respect of the estate and for which, for that reason,

an action for the recovery of the claim cannot be brought.

(2) If a claim to which subrule (1) applies is established, the claimant

may take proceedings to enforce payment of it only with the consent of the

court.

Duties of the Clerk

Fees

44 The clerk may charge fees in accordance with

Schedule 2 for the

performance of duties and services by the clerk under these Rules.

Applications

45 The clerk must

(

a) number and date every application for a grant when it is filed,

(

b) record the information in the appropriate court records,

(

c) present all applications to the court for its order and

direction, and

(

d) send any rejection notice in Form NC 26 to the applicant.

Grants

46 The clerk must

(

a) sign all grants and copies of any will forming part of or

attached to a grant;

(

b) issue all grants under the seal of the court;

(

c) record all grants and copies of wills in the appropriate court

records.

Retention of documents

47 The clerk must retain a sealed duplicate of all grants issued.

Copies of documents

48 Unless the court requires otherwise, the clerk, on payment of the

required fee, must give copies of all documents filed in the court to any

person who asks for them.

Clerk's certificate

49 The clerk may issue a certificate in Form NC 49 that a grant or other

document is in force.

Division 2

Administration of the Estates of Minors

Applications

50(1) A person may apply for a grant of trusteeship of the estate of a

minor.

(2) An applicant for a grant under this Division must file the following

forms:

(

a) Form NC 43;

(

b) Form NC 44.

(3) If the minor who is the subject of an application is 14 years of age

or over, the applicant must file an election in Form NC 45.

Publication

51 The court may require a notice of intention to apply for trusteeship

of the estate of a minor in Form NC 46 to be published at the time and in

the manner ordered by the court.

Bonds

52 An applicant under this Division must provide a bond unless the court

dispenses with the bond.

Dispensing with bond

53 An applicant may apply to dispense with a bond by filing an affidavit

in Form NC 47.

Application of rules

54(1) This Division and rules 38 to 43, 55 to 70, 95 and 96 apply to an

application for a grant of trusteeship of the estate of a minor and to the

administration of the estate of a minor.

(2) Part 3, except rule 97(2), applies to the trustee of the estate of a

minor.

PART 2

CONTENTIOUS MATTERS

Division 1

General

Application

55(1) An application to the court may be made under this Part respecting

any contentious matter.

(2) If applying a rule in this Division would lead to a conflict

respecting the application of a rule in any other Division in this Part,

the rule in the other Division applies and the rule in this Division does

not.

Parties

56(1) If a personal representative is not joined as an applicant in an

application under this Part, that personal representative must be shown as

a respondent in documents filed with the court.

(2) The respondents in an application under this Part must be grouped in

accordance with the classes set out in rule 57 in any documents filed with

the court.

Persons interested in the estate

57 Subject to rule 78, the classes of persons who may be interested in a

particular estate are the following:

(

a) personal representatives;

(

b) residuary beneficiaries;

(

c) life tenants;

(

d) specific beneficiaries who have not received their entitlement

under the will;

(

e) heirs on intestacy;

(

f) trustees of dependent adults under the Dependent Adults Act;

(

g) attorneys appointed under the Powers of Attorney Act;

(

h) minors;

(

i) missing persons;

(

j) convicts;

(

k) unpaid claimants;

(

l) bonding companies;

(

m) a group of persons with identical interests ordered to be a

class by the court.

Commence- ment of action

58 A person may commence an application under this Part by filing

(

a) a notice of motion in Form C1, and

(

b) an affidavit in Form C2.

Documents to be served

59(1) An applicant must serve copies of the documents required to be filed

under these Rules or the Alberta Rules of Court (Alta. Reg. 390/68) on all

the persons interested in the estate, if any.

(2) If a missing person as defined in the Public Trustee Act or a convict

is a person interested in an estate, the applicant must serve the Public

Trustee with notice of the application.

Service

60(1) Service may be made on a person

(

a) personally or by double registered mail in the case of an

originating document,

(

b) by ordinary mail delivery or electronic transmission in the

case of documents that are not originating documents,

(

c) if documents filed in the matter give an address for service,

at that address, or

(

d) by serving a lawyer who is authorized to accept service on

behalf of a person.

(2) Proof in Form NC 27 that a person has been served must be filed with

the court.

Notice

61 Notice of an application must be given

(

a) to the personal representative 30 days before the hearing;

(

b) to the Public Trustee 10 days before the hearing;

(

c) to other persons interested in the estate, if they are

residents of Alberta, 10 days before the hearing;

(

d) to other persons interested in the estate, if they are not

residents of Alberta, 30 days before the hearing.

Represen- tation

62(1) At any time during the proceedings, the court may

(

a) decide that certain parties form a class with identical

interests whether or not they are also in a class referred to in rule 57,

(

b) require that all the parties in a class be represented by the

same lawyer,

(

c) determine which parties may cross-examine witnesses and make

representations to the court,

(

d) require 2 or more persons to be represented by different

lawyers if they are represented by the same lawyer, or

(

e) appoint a lawyer to represent an unrepresented person.

(2) One or more of the persons in a class may appoint a particular lawyer

to represent them if they do not accept the lawyer appointed by the others

in the class to represent the class.

(3) The costs of a lawyer appointed under subrule (2) may be paid from the

estate only if the court specifically orders that the costs are to be paid

from the estate.

Proceedings in chambers

63 All proceedings to which this Part applies must be before a judge in

chambers unless the court or these Rules require otherwise.

Procedure at hearing

64(1) The court, on hearing an application, may

(

a) receive evidence by affidavit or orally;

(

b) summarily dispose of the issues arising out of the application;

(

c) direct a trial of issues arising out of the application;

(

d) grant any relief to which the applicant is entitled because of

a breach of trust, wilful default or other misconduct of a respondent;

(

e) direct that notice of the court's judgment or order be given to

a particular person;

(

f) dispense with service of notice on any person if, in the

opinion of the court, service is impractical;

(

g) subject to subrule (2), dispense with service of an order and

order that a person is bound by the court's order as if the person had

received notice of it;

(

h) order costs to be paid from the estate or by any person who is

a party to the application;

(

i) make any order that the court considers necessary in the

circumstances.

(2) If service on a person is dispensed with under subrule (1) and an

order is obtained by fraud or non-disclosure of material facts, that person

is not bound by the order.

Standing

65 A person served with notice of an order may

(

a) apply to vary, discharge or add to the order within 14 days

after being served, and

(

b) attend any proceedings in respect of the order.

Trial of an issue

66 If the court orders the trial of an issue, the court must order the

is to take place.

Time limit

67(1) An applicant must not apply for an order requiring a personal

representative to accept or refuse probate until at least 60 days after the

date of the death of the testator.

(2) Despite subrule (1), an applicant may apply for an order requiring a

personal representative to accept or refuse probate during the period

referred to in subrule (1) if, in the opinion of the court, the

circumstances warrant the granting of the order.

Production of testamentary documents

68 If an applicant applies for an order requiring the production of a

testamentary document, the court may require a person by affidavit or by an

appearance before the court,

(

a) to explain why the document should not be produced and

deposited with the clerk,

(

b) to explain why the document cannot be produced,

(

c) to give a statement that no testamentary document is or has

been in the person's possession or control, or

(

d) to give any information the person has that is relevant to

discovering the document's present location.

Security for costs

69 The court may order security for costs to be posted by any party at

any stage of the proceedings under this Division.

Time for completion

70 The court may set a time or times within which matters or proceedings

respecting an estate under this Part must be completed.

Division 2

Proceedings on Caveats

Caveat against issue of grant

71(1) A person may file a caveat under the Administration of Estates Act

in Form C3 against the issue or resealing of a grant.

(2) The clerk must send a copy of any caveat filed with respect to an

estate to the applicant for a grant in respect of that estate.

(3) If a caveat expires or is withdrawn or removed, an application for a

grant becomes a non-contentious matter and must be continued under

Part 1.

Warning to caveator

72 An applicant for a grant may file and serve on a caveator a warning in

Form C4.

Objection to grant

73(1) A caveator may file a notice of objection in Form C9 to a grant

being issued under

Part 1 and serve it on the applicant not more than 10

days after the caveator is served with the warning.

(2) Despite subsection (1), a caveator may apply to the court for an order

extending the time within which the caveator must file and serve a notice

of objection.

(3) If a caveator files and serves a notice of objection within the time

allowed, the application must be continued under Division 3.

(4) If a caveator does not file and serve a notice of objection within the

time allowed, the clerk must remove the caveat and the application for a

grant must be continued under

Part 1.

Frivolous or vexatious caveat

74(1) Despite rule 73, if a caveator files and serves a notice of

objection to an informal grant, the applicant may apply for an order that

the caveat is frivolous or vexatious and that the caveat be removed.

(2) If the court determines that a caveat is frivolous or vexatious, the

court may order that the caveat be removed and award costs against the

caveator.

(3) If the court determines that a caveat is not frivolous or vexatious,

the application for a grant must be continued under Division 3.

(4) If the court determines that a caveat is not frivolous or vexatious

but that it should be removed in the circumstances of the estate, the court

may order that the caveat be removed.

Division 3

Formal Proof of a Will

Applications

75(1) A personal representative or a person interested in the estate may

apply to the court

(

a) to obtain formal proof of a will, whether or not an application

for a grant has been made under

Part 1;

(

b) to set aside a grant issued under

Part 1 and require formal

proof of the will;

(

c) to prevent the issue of a grant under

Part 1 and require formal

proof of a will;

(

d) to obtain an order that the deceased died intestate;

(

e) to request the appointment of a personal representative;

(

f) to request the appointment of a personal representative other

than the one appointed by a grant issued under

Part 1;

(

g) to restrain a personal representative from exercising any

powers during an application under this subrule;

(

h) to appoint a special personal representative to conduct an

application under this subrule.

(2) The court may order a person to apply for an order under subrule (1).

(3) An application under subrule (1) operates to stay proceedings under an

application under

Part 1.

(4) If an application under subrule (1) is filed, a personal

representative appointed by a grant issued under

Part 1 must not distribute

any of the property of the estate unless

(

a) the court approves the distribution, or

(

b) all persons interested in the estate consent to the

distribution.

(5) Subject to subrule (4), if an application is filed to appoint a

personal representative under this Part and to restrain a personal

representative appointed by a grant issued under

Part 1 from acting, the

personal representative appointed by the grant issued under

Part 1 must not

exercise any of the powers of a personal representative during the

application for formal proof of the will without the consent of the court.

Original will lost or destroyed

76 If an original will is lost or destroyed, a person interested in the

estate must apply for an order under rule 75 unless

(

a) the applicant shows to the satisfaction of the court that

section 41 of the Alberta Evidence Act applies, or

(

b) the court orders otherwise.

Required documents

77(1) A person may commence an application under this Division by filing

the following and serving them on the persons interested in the estate:

(

a) if the application is made by a personal representative,

(

i) Form C5;

(ii) Form C6;

(iii) Form C8;

(

b) if the application is made by a person interested in the

estate, a notice of objection in Form C9;

(

c) if the application is ordered by the court, direction by the

court that the will be formally proved.

(2) If a court file has already been opened for the estate, the clerk must

record all of the documents under subrule (1) in the existing file.

(3) If there is no court file, the documents under subrule (1)(

a) and (

b) are originating documents and the clerk must open a court file.

(4) If an application under this Division is not contested or opposed, the

court may make an order under this Division based on the documents filed

without requiring more.

Persons interested in the estate

78 Despite rule 57, the classes of persons interested in an estate who

may apply for an order under rule 75 are the following:

(

a) surviving spouse;

(

b) adult children;

(

c) Public Trustee or any other person representing minors;

(

d) trustees of dependent adults under the Dependent Adults Act;

(

e) attorneys appointed under the Powers of Attorney Act;

(

f) Public Trustee when representing missing persons or convicts;

(

g) heirs on intestacy;

(

h) personal representatives and beneficiaries in any will in

respect of which an application is made under these Rules;

(

i) personal representatives appointed under a prior grant issued

in respect of the will;

(

j) the alleged deceased if the fact of death is an issue.

Action commenced by a person interested in the estate

79(1) If a person interested in an estate files an application under this

Division, a personal representative named in the will may

(

a) file the documents referred to in rule 77(1)(a);

(

b) renounce all right to be the personal representative of the

estate if the personal representative has not intermeddled in the estate;

(

c) apply to be discharged;

(

d) apply for an order that the application is frivolous or

vexatious.

(2) An application under this Division or under

Part 1 is not by itself

intermeddling in the estate.

Special applications

80(1) If a personal representative renounces all rights or does not

respond to a notice of objection in Form C9, a person interested in the

estate may apply to the court for directions on how to proceed.

(2) The court may appoint a personal representative to administer the

estate and conduct proceedings under this Division until a grant is issued.

Order requiring formal probate

81(1) The court may require formal proof of a will with respect to which

an application is made under

Part 1 whether before or after a grant is

issued.

(2) An order referred to in subrule (1) must give the reasons for

requiring formal proof of the will.

(3) If an order is made under subrule (1), the personal representative or

applicant, as the case may be, must file the documents required under rule

77(1)(a).

Parties

82 If a personal representative renounces or fails to respond to a notice

of objection in Form C9, the person filing the notice of objection is the

applicant in any application to the court for further directions.

Hearing in chambers

83(1) Despite rule 85, the hearing of an application for formal proof of a

will under this Division must be in chambers if the only issue is proof of

the death of the testator or proving the signing of the will or both.

(2) In subrule (1), "proving the signing of the will" means

(

a) proving the fact of the testator's signature and handwriting,

(

b) proving the fact of the witnesses' signatures, presence and

qualifications, or

(

c) proving that the signing of the will complied with the Wills

Act.

Evidence

84(1) Evidence at a hearing in chambers referred to in rule 83 may be

given by affidavit or orally or both.

(2) Any person who took instructions for the preparation of the will is

compellable as a witness respecting

(

a) the circumstances of that person's involvement in the

preparation of the will and of any lawyer's retainer,

(

b) the instructions given by the testator,

(

c) the preparation of the will or the circumstances of its

signing, or

(

d) any steps taken to ascertain or record by any means the

testator's capacity or the witness's or lawyer's opinion concerning that

capacity.

Trial

85(1) The hearing in an application for formal proof of a will under this

Division must be in the form of a trial before the court and must not be

held in chambers,

(

a) if several witnesses are necessary in the opinion of the court,

(

b) if the court orders a trial.

(2) If the hearing is a trial, the applicant must apply to the court in

chambers for directions on the procedure to be followed at the trial.

(3) The court on application under subrule (2) may

(

a) set the procedure to be followed at the trial, including

(

i) giving directions on pre-trial discovery and

examinations,

(ii) ordering the discovery of documents,

(iii) stating the parties and their roles,

(iv) ordering the representation of parties, or

(

v) dispensing with pre-trial procedures and sending

the matter straight to trial,

(

b) despite subrule (1), order a hearing in chambers on affidavit

or oral evidence or both respecting certain issues.

Order of decisions

86 The court must do the following on an application for formal proof of

a will:

(

a) if several wills of the deceased are in issue, consider each

will in turn in the order in which they were made, beginning with the most

recent;

(

b) as soon as the court admits to probate one or more wills that

dispose of all of the property of the deceased, consider no further wills;

(

c) if the wills admitted to probate do not dispose of all of the

property of the deceased, consider whether an intestacy exists;

(

d) if a will is opposed and an application for a declaration of

intestacy is made, decide whether the will should be admitted to probate.

Order of proceedings

87 In an application for formal proof of a will under this Division,

(

a) the proponent of the will must be heard first and must present

evidence concerning the proof of death, proof of the signing of the will

and the capacity of the deceased, and

(

b) the contestant must be heard next.

Other proceedings

88 An application for formal proof of a will may be combined with another

application to the court concerning the same estate.

Witness fees

89 Any person who appears as a witness at a hearing under this Division

(

a) is entitled to an appearance fee in the amount required to be

paid to witnesses in civil cases, and

(

b) may be given a preparation fee and any additional fees in

amounts specified by the court.

Powers of the court

90 On an application under this Division the court may

(

a) determine the fact of death;

(

b) determine whether the deceased died testate or intestate;

(

c) determine which will of the deceased, if any, to admit to

probate;

(

d) determine the heirs of a deceased on intestacy;

(

e) terminate any grant issued under

Part 1 appointing a personal

representative;

(

f) terminate the appointment of a personal representative who was

appointed to make an application for formal proof of a will;

(

g) issue any grant referred to in rule 10;

(

h) direct the payment of costs, including penalizing any person

who required formal proof of the will if it became clear during the

proceedings that

(

i) the application was frivolous or vexatious,

(ii) the person caused undue delay, or

(iii) the person had no substantial basis for requiring

the scrutiny of the court;

(

i) determine any other matter that the court considers relevant or

that is incidental to the application.

Order final

91(1) Subject to subrule (2), in the absence of fraud and even if a will

is discovered after the court makes a decision under rule 86, a grant

issued under rule 90 based on that decision is binding on all persons.

(2) A person referred to in rule 78 who was not served with notice of

proceedings under this Division may apply for an order under this Division

in respect of a testamentary instrument that has not been considered by the

court in a prior application under this Division.

Appeal

92 Despite rule 91, an appeal lies to the Court of Appeal from the whole

or any part of an order under this Division.

Return and revocation of informal grant

93(1) If an application is made under rule 75 for formal proof of a will,

a personal representative who has been appointed by a grant issued under

Part 1 must return the grant to the court unless the court orders

otherwise.

(2) If a personal representative does not return a grant, the court may

issue an order requiring delivery of the grant to the clerk.

(3) If the court revokes a grant after proceedings for formal proof of a

will are concluded, the clerk must endorse the following on the grant:

Revoked by Order of M Justice

(Clerk of the Surrogate Court) (seal)

Division 4

Proof of Death

Proof of death

94(1) The court may permit a person to swear to the death of another

person if there is no direct evidence of the death but there is evidence

from which the death can be presumed.

(2) An application for permission to swear to the death of a person may be

made

(

a) in Forms C1 and C2, and

(

b) without notice or on the notice the court orders.

(3) The court may declare that the death of a person is proven or presumed

if the court is satisfied with the evidence and the form of the evidence

presented to the court.

Division 5

Claims on an Estate

Contested claim

95 If a personal representative does not agree with all or part of the

claim of a claimant against the estate, the personal representative must

serve the claimant with a notice of contestation in Form C11.

Application to court

96(1) A claimant whose claim is contested may apply to the court for an

order allowing the claim and setting the amount by filing a notice of claim

with affidavit in Form C12 and serving it on the personal representative.

(2) A claimant must make an application under subrule (1) within 60 days

of receiving the notice of contestation under rule 95.

(3) The court may waive the time limit in subrule (2) if

(

a) the claimant applies to the court for an extension of time

before the expiration of the 60 days, and

(

b) the application is heard not more than 3 months after the last

day of the original 60-day period.

PART 3

ACCOUNTING

Division 1

General

Requirement for an accounting

97(1) A personal representative must give an accounting of the

administration of the estate at regular intervals

(

a) by preparing financial statements showing the property and

money received and the property distributed and the money paid out

respecting the administration of the estate, and

(

b) by giving the financial statements to the beneficiaries.

(2) Unless the court orders a longer or shorter period, a personal

representative must give an accounting of the administration of the estate

every 2 years after the date of death or the date of the end of the latest

period for which an accounting is given.

(3) The court may require, or a person interested in the estate may apply

to the court for an order requiring, the personal representative to give an

accounting of the administration of the estate at any time.

(4) A beneficiary of only a specific gift under a will

(

a) is entitled to an accounting that is in respect of only that

gift, and

(

b) who has received that gift may not apply for an order under

subrule (3).

Contents of financial statements

98(1) The financial statements respecting an estate must include the

following:

(

a) an inventory of property and debts at the beginning and end of

the accounting period;

(

b) a statement of all property and money received during the

accounting period showing whether it is capital or income;

(

c) a statement of all property distributed and money paid out

during the accounting period showing whether it is capital or income;

(

d) a statement of all changes to property made and all debts of

the estate paid or incurred by the personal representative during the

accounting period;

(

e) a statement of all expenses incurred or paid during the

accounting period;

(

f) in the case of a final passing of accounts, a statement of

anticipated receipts and disbursements;

(

g) a reconciliation, where necessary, showing the items required

to balance the opening net value of the estate with the closing net value

of the estate;

(

h) a distribution schedule, including interim distributions and

the proposed final distribution, if appropriate;

(

i) a proposed compensation

schedule for the personal

representative showing the basis on which it is calculated and its

allocation to income or capital.

(2) The financial statements may be separate or combined as long as they

can be followed clearly.

(3) The financial statements may be in any format, but each entry must be

numbered consecutively.

(4) If the will or other trust instrument specifies separate capital and

income interests, the financial statements must distinguish entries

respecting capital from entries respecting income.

(5) The court, at any time, may require further financial statements or

more particulars with respect to the financial statements presented.

Acceptable documen- tation

99 The following documentation is sufficient to confirm ownership by the

estate of the property referred to:

(

a) in the case of publicly traded securities and commercial paper,

(

i) a certificate, or

(ii) a letter from a dealer registered under the

Securities Act, a bank or a trust corporation, whether registered under the

Loan and Trust Corporations Act or not, carrying on business in any

jurisdiction in Canada stating that the dealer, bank or trust corporation

is holding securities for the estate, either by having them in its

possession, through a securities depository or by some other means that is

in accordance with current practice in the industry;

(

b) in the case of private company shares,

(

i) a certificate, or

(ii) a letter from a duly authorized officer of the

company or from the company's lawyer confirming the holding;

(

c) in the case of bank balances, cash, term deposits, treasury

bills, annuities, pensions, retirement plans, royalty trusts, and similar

property,

(

i) a certificate or statement of account, or

(ii) a letter from a financial institution stating that

the financial institution is holding property for the estate, either by

having it in its possession, through a securities depository, or by some

other means that is in accordance with current practice in the industry;

(

d) in the case of household goods and personal effects,

(

i) a letter or bill of lading from any depository

where the goods or effects are stored, or

(ii) an inventory, the accuracy of which is attested to

by the personal representative, indicating possession of the goods or

effects on behalf of the estate;

(

e) in the case of real property, a current certified copy of the

certificate of title.

Division 2

Releases

Releases

100(1) A personal representative may, on the presentation of accounts to

the residuary beneficiaries, obtain releases in Form ACC 12 from the

residuary beneficiaries.

(2) The releases obtained under subrule (1) need not be filed.

Effect of release

101 A personal representative may rely on a release for confirmation

that, in the opinion of the residuary beneficiary giving the release,

(

a) the accounting in respect of the estate presented to the

beneficiary is satisfactory;

(

b) the personal representative may be compensated as set out in

the statement of compensation included in the financial statements;

(

c) the personal representative may distribute the estate in

accordance with the statement of distribution included in the financial

statements.

Bond

102 Releases obtained under rule 100 do not constitute the cancellation

of a bond.

Division 3

Dispensing with Formal Passing of Accounts

Dispensing with passing accounts

103(1) A personal representative may apply for an order dispensing with

the formal passing of the accounts and passing the accounts informally by

filing the following and serving copies on the persons interested in the

estate who have not given releases:

(

a) Form ACC 10;

(

b) Form ACC 11;

(

c) the financial statements;

(

d) all signed releases in Form ACC 12.

(2) A personal representative need not serve a beneficiary from whom the

personal representative has received a signed release under rule 100.

Proceeding without notice

104 If no notice of objection is filed by a person interested in the

estate or if all residuary beneficiaries have signed releases, an

application under rule 103 may proceed without notice to any other person.

Court order

105 Even if all the residuary beneficiaries have signed releases, the

court

(

a) must be satisfied with all the required documentation

respecting the estate whether or not all the residuary beneficiaries have

signed releases;

(

b) may make the order applied for;

(

c) may do anything it may do under rule 113.

Objection

106(1) If any person interested in the estate objects to an application

under this Division, that person must file and serve a notice of objection

in Form ACC 3 in accordance with rule 114.

(2) If a notice of objection is filed, the court must hold a hearing under

Division 4 on the matter.

Division 4

Passing Accounts

Required forms

107(1) A personal representative may apply for an order formally passing

accounts by filing the following and serving copies on the persons

interested in the estate who have not given releases

(

a) Form ACC 1;

(

b) Form ACC 2;

(

c) the financial statements;

(

d) all signed releases in Form ACC 12;

(

e) any notice of objection in Form ACC 3.

(2) The personal representative must serve the notice of hearing attached

to Form ACC 1 not less than 30 days before the hearing.

Application by person interested in estate

108(1) A person interested in an estate may apply for an order requiring

the formal passing of accounts by filing the following and serving copies

on the personal representative:

(

a) Form ACC 6;

(

b) Form ACC 7.

(2) An applicant must serve the notice of hearing attached to Form ACC 6

not less than 30 days before the hearing.

(3) In an application by a person interested in an estate that accounts be

formally passed, the person interested in the estate is the applicant and

the personal representative is one class of respondent.

Reply

109(1) A personal representative who is served with notice under rule 108

must file and serve a reply in Form ACC 8 not less than 10 days before any

scheduled hearing on the applicant and all persons interested in the estate

who have not given releases.

(2) In a reply, the personal representative may

(

a) give an accounting to the applicant and other parties if one

has not been given before that time,

(

b) object to the application that accounts be formally passed, or

(

c) consent to the application that accounts be formally passed.

Withdrawal

110 If a personal representative gives an accounting pursuant to rule

109(2)(

a) that satisfies the applicant, the applicant must withdraw the

application by giving a letter to that effect to the clerk and serving a

copy of the letter on any of those who were served with notice of the

application.

Objection

111 If the personal representative objects pursuant to rule 109(2)(

b) to

an application for an order requiring the formal passing of accounts, the

personal representative must file an affidavit in Form ACC 9 and serve it

not less than 10 days before the scheduled hearing on the applicant and the

persons interested in the estate who have not given releases.

Consent to an accounting

112(1) If a personal representative consents under rule 109(2)(

c) to an

application, the personal representative

(

a) must adjourn any scheduled hearing and set a new date for a

hearing in accordance with subrule (2), and

(

b) must serve the documents in rule 107(1) and the notice of

hearing not more than 60 days after serving a reply under rule 109 on the

persons interested in the estate who have not given releases.

(2) The new date set under subrule (1) must occur on the earlier of

(

a) a day that is not more than 40 days after the day on which the

documents are served under subrule (1), and

(

b) a day that is not more than 120 days after the personal

representative is served under rule 108(1).

Powers of court

113(1) The court may

(

a) set a date for a hearing and direct that notice of the hearing

be served on the persons specified by the court within the periods

specified despite the time limits for service in rules 107, 108 and 112;

(

b) direct a formal passing of one or more or all entries;

(

c) reject the application;

(

d) dispense with a formal passing and pass the accounts on an

informal basis;

(

e) make any other determination that the court considers

appropriate.

(2) At a hearing to pass interim or final accounts, the court may

(

a) pass the accounts;

(

b) vary or amend the financial statements;

(

c) set the compensation for the personal representative and give

any directions in that respect;

(

d) decide any matters in dispute summarily;

(

e) order the trial of any matter in dispute, set the procedure the

parties must follow and set time limits if it is appropriate;

(

f) appoint a person to assist the court in determining any matters

on which the court requires further clarification or explanation;

(

g) direct the payment of debts or charges;

(

h) confirm the beneficiaries and their several interests and

direct distribution of the estate to them;

(

i) direct the substitution for or the reduction or cancellation of

any bond;

(

j) direct payment to the Public Trustee or any other trustee of

any money to which a minor, missing person or convict is entitled;

(

k) allow and direct payment of costs;

(

l) generally dispose of all matters incidental to the

administration of the estate to a date to be stated in the order.

(3) If the court makes an order referred to in subrule (2)(f), the order

must not include an examination of maintenance payments ordered by the

Provincial Court or the Court of Queen's Bench other than to determine

whether or not the payments have been made.

(4) On a final passing of accounts, the court, in addition to the powers

referred to in subrule (2), may

(

a) discharge a personal representative who is an administrator;

(

b) determine whether a personal representative who is an executor

has fully and satisfactorily accounted to a date to be stated in the order;

(

c) make any other order that the court considers appropriate.

Notice of objection

114(1) In any proceedings under Division 3 or this Division, if a person

interested in the estate objects to financial statements or part of them,

the person must file a notice of objection in Form ACC 3 with the court and

serve a copy of it on the personal representative and all persons

interested in the estate not less than 20 days before the scheduled

hearing.

(2) In a notice of objection, the objecting person

(

a) must give particulars of the objection in Form ACC 3,

(

b) if there is an objection to an entry in the financial

statements, must indicate the entry objected to by its number, and

(

c) if there is an objection to the manner in which the personal

representative has administered the estate, must state the objection.

(3) A person who does not file and serve a notice of objection may only

make representations at the scheduled hearing with the permission of the

court.

(4) If a person does not appear at the scheduled hearing and has not filed

and served a notice of objection as required, that person is deemed to have

consented to the administration of the estate as recorded in the financial

statements.

Examination of accounts by an accountant

115(1) The court, at any time and whether at a hearing or not, may order

one or more entries in the financial statements of a personal

representative to be examined by an accountant.

(2) An accountant referred to in subrule (1) must be a chartered

accountant, a certified general accountant or a certified management

accountant.

(3) The court must determine the nature, scope and extent of the

accountant's examination.

(4) The terms of the accountant's appointment may be in Form ACC 4.

(5) An accountant's fees, disbursements and other charges are payable out

of the residue of the estate unless otherwise ordered by the court.

Access to records

116 A personal representative and any other person having knowledge or

possession of documents relating to the administration of an estate must

make all records and other pertinent documents available to an accountant

appointed under rule 115 and must co-operate fully with the accountant.

Report

117(1) At the end of the examination, an accountant appointed under rule

115 must file a report in Form ACC 5 and serve a copy of the report by

ordinary mail on the personal representative and on the persons interested

in the estate.

(2) The court may require the accountant to appear at any hearing and give

any further explanations the court needs in order to pass the accounts.

PART 4

DEPENDENT ADULTS

Application of

Part

118(1) This Part applies to the administration of the estate of a

dependant adult pursuant to a trusteeship order.

(2) Words used in this Part have the meaning given to them under the

Dependent Adults Act.

Contents of financial statements

119(1) The accounts filed by a trustee respecting an estate must be in the

form of financial statements that include the following:

(

a) an inventory of property and debts at the beginning and end of

the accounting period using Form DA 5;

(

b) a statement of all property and money received during the

accounting period;

(

c) a statement of all property distributed and money paid out

during the accounting period;

(

d) an indication of all changes to property and all debts of the

estate paid or incurred during the accounting period;

(

e) a statement of all expenses incurred or paid during the

accounting period using Form DA 5;

(

f) in the case of a final passing of accounts, a statement of

anticipated receipts and disbursements;

(

g) a reconciliation, where necessary, showing the items required

to balance the opening net value of the estate with the closing net value

of the estate;

(

h) a proposed compensation

schedule for the trustee showing the

basis on which it is calculated.

(2) The financial statements may be separate or combined as long as they

can be followed clearly.

(3) The financial statements may be in any format, but each entry must be

numbered consecutively.

(4) The court, at any time, may require further financial statements or

more particulars with respect to the financial statements presented.

Acceptable documentation

120 The following documentation is sufficient to confirm ownership by the

estate of the property referred to:

(

a) in the case of publicly traded securities and commercial paper,

(

i) a certificate, or

(ii) a letter from a dealer registered under the

Securities Act, a bank or a trust corporation, whether registered under the

Loan and Trust Corporations Act or not, carrying on business in any

jurisdiction in Canada stating that the dealer, bank or trust corporation

is holding securities for the estate, either by having them in its

possession, through a securities depository or by some other means that is

in accordance with current practice in the industry;

(

b) in the case of private company shares,

(

i) a certificate, or

(ii) a letter from a duly authorized officer of the

company or from the company's lawyer confirming the holding;

(

c) in the case of bank balances, cash, term deposits, treasury

bills, annuities, pensions, retirement plans, royalty trust and similar

property,

(

i) a certificate or statement of account, or

(ii) a letter from a financial institution stating that

the financial institution is holding property for the estate, either by

having it in its possession, through a securities depository, or by some

other means that is in accordance with current practice in the industry;

(

d) in the case of household goods and personal effects,

(

i) a letter or bill of lading from any depository

where the goods or effects are stored, or

(ii) an inventory, the accuracy of which is attested to

by the trustee, indicating possession of the goods or effects on behalf of

the estate;

(

e) in the case of real property, a current certified copy of the

certificate of title.

Required forms

121(1) A trustee may apply for an order passing the accounts by filing the

following and serving copies on any interested persons who have not signed

an approval and consent form:

(

a) an application for an order passing the accounts in Form DA 1;

(

b) an affidavit in Form DA 2;

(

c) the financial statements;

(

d) all signed approval and consent forms in Form DA 12.

(2) The trustee must serve the notice of hearing attached to Form DA 1 not

less than 10 days before the hearing.

(3) Where any date fixed for a hearing under this Division is adjourned

for any reason, adequate notice of the rescheduled hearing must be given to

any interested persons.

(4) For the purposes of this Part, an approval and consent form may be in

Form DA 12.

Application by an interested person

122(1) An interested person may apply for an order that a trustee bring in

and pass the accounts or file an inventory by filing the following and

serving copies on the trustee and any interested persons:

(

a) an application that the trustee pass the accounts or file an

inventory in Form DA 6;

(

b) an affidavit in Form DA 7.

(2) The applicant must serve the notice of hearing attached to Form DA 6

not less than 30 days before the hearing.

Parties

123 In an application by an interested person that the trustee pass the

accounts or file an inventory, the interested person is the applicant and

the trustee is the respondent.

Reply

124(1) A trustee who is served with notice under rule 122 must file and

serve a reply in Form DA 8 on the applicant and any interested persons not

less than 10 days before any scheduled hearing.

(2) In a reply, the trustee may

(

a) agree to give and give an accounting or inventory to the

applicant and any interested persons if one has not been given before that

time,

(

b) object to the application that accounts be passed,

(

c) object to the application that an inventory be filed,

(

d) consent to the application that accounts be passed, or

(

e) consent to the application that an inventory be filed.

Accounting given

125 Where the trustee has given an accounting under rule 124(2)(

a) that

satisfies the applicant, the applicant must withdraw the application by

filing a letter to that effect with the clerk and serving a copy of the

letter on all those who were served with notice of the application.

Objection to accounting formally

126 If the trustee objects under rule 124(2)(

b) or (

c) to an application,

the trustee must file an affidavit in Form DA 9 and serve it on the

applicant and any interested persons not less than 10 days before the

scheduled hearing.

Consent to accounting formally or filing inventory

127(1) If a trustee consents under rule 124(2)(

d) or (

e) to an

application, the trustee

(

a) must adjourn any scheduled hearing and set a new date for a

hearing in accordance with subrule (2), and

(

b) must serve the documents in rule 121(1) on the applicant and

any interested persons not more than 60 days after serving the reply.

(2) The new date set under subrule (1) must occur on the earlier of

(

a) a day that is not more than 40 days after the day on which the

documents are served under subrule (1), and

(

b) a day that is not more than 120 days after the trustee is

served under rule 122(1).

Powers of court

128(1) The court may

(

a) set a date for a hearing and direct that notice of the hearing

be served on the persons specified by the court within the periods

specified despite the time limits for service in rules 121, 122 and 127;

(

b) reject the application;

(

c) make any other determination that the court considers

appropriate.

(2) At a hearing to pass interim or final accounts, the court may

(

a) pass the accounts;

(

b) vary or amend the financial statements;

(

c) set the compensation for the trustee and give any directions in

that respect;

(

d) decide any matters in dispute summarily;

(

e) order the trial of any matter in dispute, set the procedure the

parties must follow and set time limits if it is appropriate;

(

f) appoint a person to assist the court in determining any matters

on which the court requires further clarification or explanation;

(

g) direct the payment of debts or charges;

(

h) direct the substitution for or the reduction or cancellation of

any bond;

(

i) allow and direct payment of costs;

(

j) generally dispose of all matters incidental to the

administration of the estate to a date to be stated in the order.

(3) If the court makes an order referred to in subrule (2)(f), the order

must not include an examination of maintenance payments ordered by the

Provincial Court or the Court of Queen's Bench other than to determine

whether or not the payments have been made.

(4) On a final passing of accounts, the court, in addition to the powers

referred to in subrule (2), may

(

a) discharge a trustee;

(

b) make any other order that the court considers appropriate.

Reference to Public Trustee

129(1) The court, at any time and whether at a hearing or not, may refer

one or more entries in the financial statements of a trustee to the Public

Trustee in accordance with the Public Trustee Act to determine whether any

expenditure is appropriate.

(2) The Public Trustee's fees, disbursements and other charges are payable

from the estate unless otherwise ordered by the court.

Examination of accounts by an accountant

130(1) The court, at any time and whether at a hearing or not, may order

one or more entries in the financial statements of a trustee to be examined

by an accountant.

(2) An accountant referred to in subrule (1) must be a chartered

accountant, a certified general accountant or a certified management

accountant.

(3) The court must determine the nature, scope and extent of the

accountant's examination.

(4) The terms of the accountant's appointment may be in Form DA 3.

(5) An accountant's fees, disbursements and other charges are payable from

the estate unless otherwise ordered by the court.

Access to records

131 A trustee and any other person having knowledge or possession of

documents relating to the administration of an estate must make all records

and other pertinent documents available to the Public Trustee or an

accountant appointed under rule 130 and must co-operate fully with the

Public Trustee and the accountant.

Report

132(1) At the end of the examination, the Public Trustee or an accountant

appointed under rule 130 must file a report by letter in the case of the

Public Trustee or in Form DA 4 in the case of an accountant with the court

and serve a copy of the report by ordinary mail on the trustee and on any

interested persons.

(2) The court may require the Public Trustee or accountant to appear at

any hearing and give any further explanations the court needs in order to

pass the accounts.

Approving and dispensing with passing accounts

133(1) A trustee may apply for an order approving the accounts or

dispensing with passing the accounts for a period of not more than 4 years

by filing the following and serving copies on the persons interested in the

estate who have not signed an approval and consent form:

(

a) Form DA 10;

(

b) Form DA 11;

(

c) the financial statements;

(

d) all signed approvals and consent forms.

(2) A trustee need not serve an interested person from whom the trustee

has received a signed approval and consent form.

Proceeding without notice

134 If all interested persons have signed approval and consent forms, an

application under rule 133 may proceed without notice to any other person.

Court order

135 If all the interested persons have signed approval and consent forms,

the court

(

a) must be satisfied with all the required documentation

respecting the estate whether or not all the interested persons have signed

approval and consent forms;

(

b) may make the order applied for;

(

c) may do anything it may do under rule 128.

Public Trustee

136(1) If the Public Trustee is the trustee, the Public Trustee must

submit the accounts for approval by filing the following and serving copies

on any interested persons who have not signed an approval and consent form:

(

a) Form DA 16;

(

b) Form DA 17;

(

c) the financial and compensation statements;

(

d) all signed approval and consents forms.

(2) The Public Trustee must serve any interested persons with notice of

the hearing attached to Form DA 16 not less than 10 days before the

hearing.

(3) If the court so orders, the Public Trustee must bring in and pass

accounts in accordance with rule 121.

PART 5

TRANSITIONAL, REPEAL AND COMMENCEMENT

Application of Rules

137(1) Unless the court orders otherwise, these Rules apply to all estates

whether or not the administration of the estate was commenced before these

Rules come into force.

(2) Any proceeding to which these Rules would otherwise apply that was

begun in the Court of Queen's Bench before these Rules come into force

continues as if these Rules had not been enacted unless the Court of

Queen's Bench orders otherwise.

Deposit of will of a living person

138(1) The clerk must not accept a will for deposit with the court after

the date on which these Rules come into force.

(2) Rule 41 of the Surrogate Rules (Alta. Reg. 20/71) continues to apply

to any will on deposit for safekeeping with the court on the date on which

these Rules come into force.

Repeal

139 Subject to rule 138, the Surrogate Court Rules (Alta. Reg. 20/71) are

repealed.

Coming into force

140 These Rules come into force on the date on which

section 47(1) of the

Miscellaneous Statutes Amendment Act, 1992 comes into force.

SCHEDULE 1

LEGAL AND PERSONAL

REPRESENTATIVE COMPENSATION

Definition

1 For the purpose of this Schedule,

(a) "core legal services" are the legal services listed in Table 1

Part 2 normally rendered by a lawyer for the personal representatives in

connection with the administration of an estate;

(b) "non-core legal services" are legal services listed in

Part 2

Table 2 rendered by a lawyer for the personal representatives that are in

addition to the core legal services required in the administration of an

estate;

(c) "personal representatives' duties" are the tasks listed in the

Table in

Part 1 normally required to be performed by a personal

representative in the administration of an estate;

(d) "time of distribution" means

(

i) when the estate property is distributable to the

beneficiaries immediately on the death of the deceased, the time when

distribution to the beneficiaries is complete,

(ii) the time when the transfer of a minor's property to

the minor's trustees is complete, or

(iii) when the estate property is not all distributable

to the beneficiaries immediately on the death of the deceased because

trusts delay the final distribution, the time when distribution of

immediately distributable property to the beneficiaries is complete, and

transfer of the trust property to the trustees is complete.

PART 1

PERSONAL REPRESENTATIVES' COMPENSATION

Determination

1(1) Personal representatives may receive fair and reasonable compensation

for their responsibility in administering an estate by performing the

personal representatives' duties.

(2) Compensation paid to a personal representative is for all the services

performed by the personal representative to complete the administration of

the estate including distribution of the estate and the conclusion of any

trusts.

(3) A personal representative may receive compensation for the care and

management of property in an estate only if

(

a) there is no outright distribution of that estate property at

the date of death, and

(

b) the trust is not varied by agreement among the affected

beneficiaries or by the court.

Factors to be considered

2 The following factors are relevant when determining the compensation

charged by or allowed to personal representatives:

(

a) the gross value of the estate;

(

b) the amount of revenue receipts and disbursements;

(

c) the complexity of the work involved and whether any difficult

or unusual questions were raised;

(

d) the amount of skill, labour, responsibility, technological

support and specialized knowledge required;

(

e) the time expended;

(

f) the number and complexity of tasks delegated to others;

(

g) the number of personal representatives appointed in the will,

if any.

Additional compensation

3 Additional compensation may be allowed when personal representatives

(

a) are called upon to perform additional roles in order to

administer the estate, such as exercising the powers of a manager or

director of a company or business,

(

b) encounter unusual difficulties or situations, or

(

c) must instruct on litigation.

Compensation fixed in will

4 If the compensation payable to the personal representative is fixed in

a will, no greater amount can be charged or allowed unless the fixed amount

is varied by agreement among the affected beneficiaries or by order of the

court.

Compensation to be shared

5 The compensation once determined must be shared among the personal

representatives in proportions agreed to among the personal representatives

or as ordered by the court.

Pre-taking compensation

6(1) Personal representatives may be paid compensation before completing

the administration of the estate if

(

a) the will provides for it,

(

b) all the affected beneficiaries agree to it, or

(

c) the court orders it.

(2) If all or any part of the amount of compensation paid to a personal

representative under subrule (1) is later reduced by the court, the

personal representative must repay the disallowed amount immediately to the

estate with interest at a rate and for a period set by the court.

Lawyer performs personal representa-tives' work

7 If a lawyer or other agent performs some or all of the duties of the

personal representative, the amount payable to the personal representative

must be reduced commensurately.

Schedule on accounting

8 If a personal representative is required to give the beneficiary of an

estate an accounting in which compensation to the personal representative

is shown, the personal representative must give the beneficiary a copy of

this Part.

Expenses

9 Personal representatives are entitled to reimbursement for expenses

properly incurred by them in the administration of the estate, including

the following:

(

a) expenses reasonably incurred by the personal representatives in

carrying out their duties;

(

b) fees or commissions to agents, including lawyers, accountants,

real estate agents, securities brokers, investment advisors, appraisers,

auctioneers and other professionals, engaged to perform estate

administration services or to buy or sell estate property.

Table

Personal Representatives' Duties

1 Making arrangements for the disposition of the body and for funeral,

memorial or other similar services.

2 Determining the names and addresses of those beneficially entitled to

the estate property and notifying them of their interests.

3 Arranging with a bank, trust company or other financial institution for

a list of the contents of a safety deposit box.

4 Determining the full nature and value of property and debts of the

deceased as at the date of death and compiling a list, including the value

of all land and buildings and a

summary of outstanding mortgages, leases

and other encumbrances.

5 Examining existing insurance policies, advising insurance companies of

the death and placing additional insurance, if necessary.

6 Protecting or securing the safety of any estate property.

7 Providing for the protection and supervision of vacant land and

buildings.

8 Arranging for the proper management of the estate property, including

continuing business operations, taking control of property and selling

property.

9 Retaining a lawyer to advise on the administration of the estate, to

apply for a grant from the court or to bring any matter before the court.

10 Applying for any pensions, annuities, death benefits, life insurance

or other benefits payable to the estate.

11 Advising any joint tenancy beneficiaries of the death of the deceased.

12 Advising any designated beneficiaries of their interests under life

insurance or other property passing outside the will.

13 Arranging for the payment of debts and expenses owed by the deceased

and the estate.

14 Determining whether to advertise for claimants, checking all claims

and making payments as funds become available.

15 Taking the steps necessary to finalize the amount payable if the

legitimacy or amount of a debt is in issue.

16 Determining the income tax or other tax liability of the deceased and

of the estate, filing the necessary returns, paying any tax owing and

obtaining income tax or other tax clearance certificates before

distributing the estate property.

17 Instructing a lawyer in any litigation.

18 Administering any continuing testamentary trusts or trusts for minors.

19 Preparing the personal representative's financial statements, a

proposed compensation

schedule and a proposed final distribution schedule.

20 Distributing the estate property in accordance with the will or

intestate succession provisions.

PART 2

LAWYERS' COMPENSATION

Categories of service

1 A lawyer may charge fees for the following categories of legal services

in the administration of estates:

(

a) core legal services;

(

b) non-core legal services.

Personal representa-tives' duties

2 A lawyer may charge fees for legal services that involve carrying out

personal representatives' duties.

Agreement

3(1) The lawyer and the personal representatives must agree to the

categories of service that the lawyer will perform and to an arrangement or

amount for each category of fees, disbursements and other charges.

(2) The fees agreed to must cover, up to the time of distribution of the

estate,

(

a) all the core legal services or non-core legal services,

(

b) any personal representatives' duties required to be performed

by the lawyer, and

(

c) any other service

Document details

Collection	Alberta — Gazette
Citation	documents gazette 1995 pdf 0630 ii.pdf
Type	gazette
Volume / chapter	documents gazette 1995 pdf 0630 ii.pdf
Language	en
Format	json
Source	PROVINCIAL
Identifier	51c2cc728da9eda42d33f9cdf81cd40de0374267

Source file is stored in the law ingest library (json).