Probate Fees: Why Are They Still Payable In Manitoba?

• Published date: 15 July 2020
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: MLT Aikins LLP
• Author: Mr Harmanjit Mavi

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 its 2019 election platform, the Manitoba Progressive Conservative Party vowed to eliminate probate fees and indicated post-election that probate fees will be eliminated as of July 1 2020. Nonetheless, probate fees remain payable in Manitoba as of the date of this blog.

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...