Probate Fees: Why Are They Still Payable in Manitoba?

In December 2019, the Manitoba government announced that probate fees would be eliminated as of July 1, 2020. Despite the 2020 budget confirming this measure, probate fees remain payable in Manitoba as of the date of this blog.

Probate fees are levied when an application for probate or administration is sought in the Province of Manitoba or other common law jurisdictions in Canada.

They are determined as a proportion of value passing through the estate. In Manitoba, where the value of the property devolving (i.e. passing through the estate) is more than $10,000, probate fees total $70 plus $7 for every additional $1,000 of value or fraction thereof. An estate with a date-of-death value equal to $1 million, for example, would incur probate fees equal to $7,000.

In Eurig Estate (Re) [1998] 2 SCR 565, the Supreme Court of Canada held that probate fees are a direct tax and imposition thereof must be clearly and unambiguously authorized in the enabling law.  Accordingly, in Manitoba, probate fees are imposed by virtue of The Law Fees and Probate Charges Act (the “Act”) and consequently, elimination thereof requires a change to the law.

A helpful summary of how laws are made or changed in Manitoba is available on the website of the Government of Manitoba. In summary, a bill (or a proposed law) is presented to the Legislature by a sponsor (an MLA) in a first reading, debated and either accepted or rejected in a second reading, referred to a committee by the Legislature, reported (with or without amendments) by the committee to the Legislature, and concurred in and passed by the Legislature on a third reading. Once passed by the Legislature, the bill must receive royal assent of the Lieutenant Governor and comes into effect when it receives assent or on a subsequent date.

Bill No. 34 (The Budget Implementation and Tax Statutes Amendment Act, 2020) (the “Draft New Act”), intended to bring elimination of probate fees into effect, was introduced in the Legislature by Finance Minister Fielding on or about March 19, 2020; however, to date, it has not progressed beyond a first reading and passage thereof remains pending. The Draft New Act (if passed by the Legislature and upon receipt of royal assent) would repeal probate fees, as imposed by the Act. The Province would still charge a processing fee for requests for probate or administration, which would be prescribed by regulation from time to time and which we anticipate would be nominal.

Given the delay in the passage of the Draft New Act, it’s helpful to review its transitional provisions. Section 88 (7) of the Draft New Act indicates that the relevant sections “come into force on July 1, 2020 and apply to applications or probate or administration made on or after that day. If this Act receives royal assent after July 1, 2020, those sections come into force on the day it receives royal assent and apply to applications for probate or administration made on or after the day this Act receives royal assent.” At this time, we understand that the Legislature is not scheduled to sit until October and absent a special session, the promised elimination of probate fees would be delayed until Fall 2020, Winter 2021, or later (whenever the Legislature passes the Draft New Act and it receives royal assent). In the meantime, probate fees remain payable in Manitoba.

If you have questions with respect to the foregoing or, otherwise, require assistance in the administration of an estate in Manitoba, please do not hesitate to contact our Winnipeg Estate Planning and Administration group.