The Manitoba Law Reform Commission Releases Consultation Report on Small Estates
8 September 2017
By Allison Curley
Just this week, the Manitoba Law Reform Commission published its consultation report entitled, “Updating the Administration of Small Estates in Manitoba.” The consultation report considers possible legislative amendments that might improve how law and procedure operate during the administration of small estates. The Commission notes that ordinarily, there are legal and administrative costs and burdens associated with obtaining probate. The Commission then asks: “[b]ut what happens in the case of relatively small estates, where the costs associated with administering the estate may be disproportionately high compared to the value of the estate?”
In Manitoba, the administration of small estates is presently governed by The Court of Queen’s Bench Surrogate Practice Act. Passed by Manitoba’s Legislative Assembly in 1938, the Act creates a separate stream for the administration of small estates called the summary administration of small estates. This steam was developed so that the procedure is more simple and less costly. At present, in order to be eligible for the summary administration of small estates, the monetary limit of the estate (as prescribed by the Act) is $10,000. This monetary limit includes both personal property and real property.
In their consultation report, the Commission considers how the Act can be amended to improve the procedures related to the administration of small estates. It is noted by the Commission that a primary area of focus in the consultation report is whether the monetary limit should be increased. The publication of this consultation report is part of one of the Commission’s initiatives, Access to Court and Court Processes. This particular initiative is focussed on improving access to court processes and improving the administration of justice in Manitoba. In the consultation report, the Commission states:
While the Commission recognizes that the changes proposed in this report only address one aspect of a large and multifaceted access to justice problem, the recommendations, if implemented, would allow more people to access the simplified process for the administration of estates where the value is small enough that the ordinary cost of estate administration renders the act impractical. Although there are many identified barriers to accessing the justice system, it is well established that the cost and complexity are two such barriers.
One chapter of the consultation report is dedicated to the administration of estates under the Act at present, while another discusses the approaches taken by other jurisdictions in Canada. Finally, the Commission considers the need for reform in this area of law and then provides provisional recommendations for law reform.
In the chapter that discusses approaches taken by other jurisdictions, the Commission cites BCLI’s “Interim Report on Summary Administration of Small Estates.” Published in 2005, our interim report was part of the Succession Law Reform Project. One of the five subcommittees for the Project was devoted exclusively to small estates, and this subcommittee was tasked with examining the legislation on small estate administration.
The Commission made note of BCLI’s conclusion in the interim report relating to an appropriate monetary threshold for small estates: “a $50,000 limit would represent a reasonable estimate of the value of a typical small estate in which the assets might consist of a motor vehicle, a modest bank account, and some personal property of relatively negligible value.”
After considering the current law pertaining to small estate administration in both Manitoba and other Canadian jurisdictions, the Commission makes provisional recommendations for law reform. The Commission states that it, “is not proposing any sweeping changes to Manitoba’s procedure for administering estates or suggesting that Manitoba should consider other models; rather, in the Commission’s view, the procedure is simply in need of updating to reflect the rising value of estates in the province since the Act was last amended.”
The Commission’s provisional recommendation is that the monetary jurisdiction of the summary administration of small estates be increased under the Act, but does not propose a specific monetary threshold. Instead, “[t]he Commission stresses the importance of increasing the monetary limit under Section 47 as a way to further accessibility and efficiency objectives and does not want this recommendation to be overshadowed by a discussion on specific dollar amount.”
Legal practitioners, community groups, and any other person who has an interest in the administration of small estates are invited by the Commission to submit their comments on the provisional recommendations contained within the consultation report. The Commission has asked that these comments be received by October 30, 2017.