The Supreme Court of Newfoundland and Labrador to clarify probate fees payable pursuant to the Services Charges Act

September 4, 2018

In Newfoundland and Labrador, fees commonly referred to as “probate fees” are payable to the Crown by the estate of a deceased person “in return for a grant of letters of probate or administration” pursuant to the Services Charges Act1. The probate fee payable is calculated pursuant to subsection 4(3) of the Act, which was amended on June 23, 2015 so that the ad valorem charge2 was increased by twenty per cent, from $0.50 to $0.60 for each $100.00 increment of estate value above the first $1,000.00 (hereinafter the “Amended Fee”).

Subsection 4(6) of the Act requires Executors and Administrators to file an Amended Inventory and Valuation to certify any additional value of estate property that was not reflected on the Inventory and Valuation that was filed at the time of seeking the grant of Letters of Probate or Letters of Administration (referred to generally herein as “Letters”).  This is in recognition of the practical reality that initial estate inventories when Letters are sought are often imprecise.

For estates for which Letters were issued before June 23, 2015, the Probate Registry of Supreme Court of Newfoundland and Labrador takes the position that when an Amended Inventory and Valuation is filed as required by subsection 4(6) of the Act, the Amended Fee is retroactively applicable to the original estate inventory, subject to a credit for the probate fee actually paid at the pre-June 23, 2015 rate when Letters were granted.

It is a principle of statutory interpretation that legislation is presumed not to have a retroactive intent unless there is a clear expression of legislative intention to the contrary. In legislating the Amended Fee, the House of Assembly did not include any transitional provisions to deal with how additional probate fees would be calculated on amended estate inventories filed after the increase in the probate fee where Letters were granted before June 23, 2015.

An application is scheduled to be heard in early 2019 wherein the Supreme Court of Newfoundland and Labrador (General Division) will determine whether: (i) the Amended Fee or the pre-June 23, 2015 probate fee is applicable to amended estate inventories being filed for pre-June 23, 2015 estates; and (ii) if the Amended fee is applicable to amended estate inventories being filed for pre-June 23, 2015 estates, it is only applicable to the additional value being certified.

This Application is significant for Executors or Administrators who:

(i) obtained grants of probate or administration prior to the coming into effect of the Amended Fee;

(ii) paid, on behalf of such estates, the pre-June 23, 2015 fee in return for the grant of letters;

(iii) are now seeking to certify an Amended Inventory and Valuation with additional value for the purposes of complying with subsection 4(6) of the Act.

Executors/administrators in the position described above who are having the Amended Fee assessed by the Court (whether only on additional value being certified or on all estate value including the value originally declared before June 23, 2015) should pay the increased probate fee under protest and reserve the right to claim repayment of any probate fees incorrectly assessed by the Court applying the Amended Fee, depending on the outcome in the Application that is currently before the Court.

If this issue is of interest to you or your clients, an update will be posted on our website in early 2019 regarding the Court’s determination of the Application before the Court.

 


1  Services Charges Act, SNL1998, c. S-13.2 (the “Act”).

2  There is a $60.00 flat fee payable for estates exceeding $1,000 in value.

Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.