Court Of Appeal In The Position Of A Trial Court In Wills Variation Appeals

In Eckford v. Vanderwood, 2014 BCCA 261, the British Columbia Court of Appeal (the "Court") was faced with an appeal of a wills variation action. At trial, the application to vary the Will was denied. On appeal, the Court dismissed the appeal and upheld the trial decision, thus refusing to vary the Will.

The common law spouse ("Ms. Eckford") of the will-maker ("Mr. Vanderwood") sought to vary the Will pursuant to section 2 of the Wills Variation Act ("WVA", now repealed). This section has remained unchanged in the new Wills, Estates and Succession Act ("WESA"); the relevant provision of WESA is section 60. Ms. Eckford and Mr. Vanderwood had been living in a marriage-like relationship for approximately four years before Mr. Vanderwood died unexpectedly in a motor vehicle accident.

Ms. Eckford was not provided for in Mr. Vanderwood's Will. However, the Court noted that she did inherit Mr. Vanderwood's half interest in their home through the right of survivorship. The home was Mr. Vanderwood's most valuable asset.

Of particular interest in this case is the Court's discussion of how appeals in wills variation actions put the Court in the same position as a trial court.

The Court stated this directly at paragraph 40 of the judgment:

"An unusual feature of wills variation jurisprudence is that an appellate court is in the same position as the trial judge and is not required to defer to the trial judge's discretion except on matters based on oral testimony."

In this case, there was no oral testimony at trial. The parties had agreed to a Summary Trial and, therefore, all evidence was provided by way of affidavits. The Court noted that there were no previous decisions dictating the standard of review in a wills variation action where the evidence is limited to affidavits. The Court stated that it...