Estate Litigation Noteworthy Case Law 2022

• Published date: 20 July 2023
• Subject Matter: Family and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Lindsay Kenney LLP
• Author: Mr Scott Somers

Case law regarding estate litigation procedures, claims and remedies is increasingly coming to the forefront of the Court's docket, given the aging population and the ever-increasing value of land. Simply put, owning a mortgage-free home now creates (at least) a 1 million dollar estate, and with that amount of money involved it is important to know your legal rights.

The last half of 2022 provided us with many decisions involving the practice of estate litigation. Here are the highlights of those cases:

Legal Concepts

• Pinsonneault v. Courtney, 2002 BCSC 120 - The legal concepts of "resulting trust" and "constructive trust."
  • A "resulting trust" was explained when the title to property is in one party's name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner.
  • A "constructive trust" operates as a remedy, where good conscience requires it, and may be imposed by the court after finding that one party has been unjustly enriched. As such, it does not delve into intention, but rather focuses on after-the-fact fairness.

Procedural Issues

• Simpson v. Zaste 2022 BCCA 208 - You have 180 days from Grant of Probate to act
  • The court stated "The proper tool to remedy any concern ... their father failed to make adequate provision for their support, was a wills variation claim under Division 6 of WESA, which would allow for a proper balancing of interests in all of the circumstances. That tool, however, was lost due to the expiry of the statutory limitation, leading to the present application."

• Hoggan v Silvey 2022 BCCA 176 - Beneficiaries to a Will have the ability to bring/pursue claims
  • Beneficiaries can remove executors for not doing their duties or the removal of an executor for their involvement in manipulating a Will.
• Berlinguette Estate (Re) 2022 BCSC 1098 - The best interest of the estate is the only factor to consider when removing an executor
  • When the executor applied to have this notice side aside, the Court stated "the only consideration on an application to remove a notice of dispute is whether to do so is in the best interests of the estate." Specifically, whether the current executor can act with detachment and even-handedness and without animosity.

• Siegerist v. Siegerist, 2022 BCSC 1427 - Application for solicitor Will drafting file
  • The court noted that there can be an implied waiver
    • If a party advances a state of mind defence and...