The recent Saskatchewan King’s Bench decision in Hunt v Hunt, 2023 SKKB 190 confronted a rather unique circumstance. The question was whether an executor who has renounced her right to probate an estate, can later rescind that renunciation.

In the situation in Hunt, the Court concluded that such renunciation could be rescinded, as no probate had yet been issued in this Estate.

Factual background:

The factual background was summarized as follows:

1. Gwendolyn Kathleen Hunt (”Gwendolyn”) died on October 12, 2019;
2. In her Last Will and Testament executed on December 29, 2014 (“Will”), Gwendolyn appointed her two children—Rayna Brandy Hunt, and Cory Robin Hunt—as co-executors of her estate;
3. Rayna averred that she did not see a copy of the Will until April 2020, six months following the death of her mother. It was then Rayna allegedly first learned Gwendolyn had appointed her as a co-executor of the Estate. Cory disputed this, and said that he gave Rayna a copy of the Will at the funeral home in October 2019, and Rayna then balked and said Cody would have to handle the Estate;
4. In April 2020, Rayna executed a renunciation, but it was not in the proper form;
5. In January 2021, Rayna executed a renunciation which was, this time, in the proper form under Rule 16-16(2) of The King’s Bench Rules;
6. In April 2021, Rayna later however decided that she did in fact wish to administer the Estate. She came to this conclusion before any grant of probate had issued in this Estate;
7. Rayna said that she came to this new conclusion, as Cory had not been diligent in managing Gwendolyn’s Estate, and Rayna now desires to be actively and fully involved in the Estate’s

Issue:

The issue before the Court was whether Rayna could lawfully rescind her renunciation.

Findings by the Court:

The Court decided that Rayna could in fact rescind her renunciation. In doing so, the Court examined the below issues.

What is the law governing the renunciation of probate:

There are formal requirements which must be complied with for a renunciation to be effective. There are also certain common law principles relevant to when such a renunciation may be rescinded.

Rule 16-16(2) of The King’s Bench Rules deals with renunciation. It states:

16-16…

(2)        If an executor does not apply for a grant, the executor shall renounce in Form 16-16.

Section 12 of The Administration of Estates Act, SS 1998, c A-4.1 sets out the legal consequences flowing from a renunciation of probate. Subsection 12(a) provides the below:

Renouncing probate

12 Where a person who is named as an executor by a will renounces probate of the will:

(a) the person’s rights with respect to the executorship and any trusteeship pursuant to the will cease; and

When can an executor rescind their renunciation?

There are a few Canadian decisions which discuss when an executor can properly rescind a renunciation.

For example, the Court in Hunt cited the Nova Scotia Court of Appeal in Re MacIssac and MacDonald, (1983), 1983 CanLII 2835 (NS CA), 148 DLR (3d) 553 (NS CA), for the proposition that after letters probate are granted, an executor may be permitted to renounce only if it is shown that to do so “was in the best interests of the estate and all those interested therein”.

However, the Court in MacIssac had made clear that there was no outright prohibition on allowing an executor to rescind a renunciation.

Decision of the Court in Hunt:

The Court held that, as no probate had been made, the law was clear that it was permissible for an executor to rescind an earlier renunciation.

The Court held that Rayna could rescind her renunciation:

[35]             Accordingly, I am persuaded that Rayna’s request to rescind her renunciation of probate executed on January 30, 2020, should be granted. I would note as well that allowing Rayna to continue as a co-executor of Gwendolyn’s estate accords with her mother’s wishes as set out in the Will.

…

[39]            Accordingly, for these reasons, I direct that Rayna’s renunciation of probate executed on January 30, 2020 is rescinded. As co-executors, the parties should now move with reasonable dispatch to apply for letters probate respecting Gwendolyn’s estate.

The Court made no order as to costs. The Court found that each party had acted reasonably in placing this uncertain situation to the Court for clarity. The Court held that each party was to bear his or her own costs.

Conclusion:

Situations in which executors renounce are not extremely common. Thus, situations of rescinding a renunciation are even less common. That said, the guidance in Hunt is of interest to estate practitioners. It offers a lesson that if an executor renounces, but later has a change of heart, the executor may well be able to rescind that renunciation if probate has not issued, and there have not been interim developments which make it impractical to now rescind the renunciation.

The situation would be different in another factual scenario. If much time had passed after a renunciation, and another executor had stepped into the role and performed various actions in that office, it would be far less likely that a Court would allow a renunciation to be withdrawn.