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WILLS - Variation - Contestation of claims

Wednesday, June 20, 2018 @ 8:33 AM  


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Appeal by the deceased’s former wife from an order dismissing her application to file a claim against the estate of her former husband seeking variation of his will in her favour and to contest the validity of the will. She alleged that the Rule of Law was not being applied in her series of court proceedings arising from her separation from the deceased. The spouses were divorce in 1993. The husband died in 2014. The chambers judge found that the appellant had no standing to vary the will as she did not meet the definition of spouse in the Wills, Estates and Succession Act. The judge rejected her allegations of fraud in relation to the estate, saying there was nothing beyond speculation to justify the claim. The appellant argued the chambers judge failed to address the evidence of fraud in assessing her request to file a claim against the estate and failed procedurally to provide her the opportunity to present information or question the opposing side.

HELD: Appeal dismissed. The complaints of fraud concerned the divorce proceedings. The divorce orders had not been successfully appealed and were thus valid. There was no merit to the appellant’s procedural complaints. The type of proceeding she started by her notice of application did not automatically open the way to the full trial process she claimed should have been employed. The judge did not err in not allowing the appellant to continue her pursuit of a claim to the estate. She clearly lacked standing to vary or otherwise contest the will and could not now bring a claim to that effect.

Carswell v. Engle Estate, [2018] B.C.J. No. 862, British Columbia Court of Appeal, M.E. Saunders, D.M. Smith and S.A. Griffin JJ.A., April 24, 2018. Digest No. TLD-June112018006