Desbiens v. Bernacki: Court Allows Wills Variation Act Applicants to Proceed With Claim Filed After Expiration of Limitation Period

In British Columbia, a child or spouse who wishes to apply to court to vary the will of his or her deceased parent or spouse under the Wills Variation Act must file the application in court within six month’s of the date the court grants probate of the will (or letters of administration with will annexed). This is set out in section 3, and discussed in my post "Time Limits for Bringing a Wills Variation Act Claim."

Section 112(1) of the Estate Administration Act requires the executor or other person applying for a grant of probate or administration to mail or deliver a notice of his or her intention to apply to all of those who are entitled to apply to vary the will under the Wills Variation Act. Accordingly, a spouse or child will usually know in advance that the court will be granting probate or letters of administration, and will have a reasonable amount of time to decide whether to bring a claim under the Wills Variation Act.

But what if a child or spouse does not receive a notice that the executor is applying for probate?

Charles Eldon Smith had four children. After the breakdown of his first marriage, he left his children in the care of the Ontario Children’s Aid Society. He had little further contact with his children, although a couple had made attempts as adults to get in contact with him, and one had visited him.

Charles Smith moved to British Columbia. In December, 2003, he married Angele Smith. He died on March 28, 2004. In his will he appointed his lawyer as his executor and left his estate to his Ms. Angele Smith.

His executor had not known about his children before Mr. Smith’s death. She heard after his death that he had children. She found the names and addresses of three of them (the fourth having been adopted) among his papers. She then mailed the notices required under section 112(1) of the Estate Administration Act to the three children at the addresses she found. None of the notices came back undelivered.

Unfortunately, none of the children received the notices. One of them had a different married name, and all of the addresses were long outdated.

The children found out about their father’s death and about his will after the six month limitation period expired.

The children started a Wills Variation Act application even though the six months from the date of probate had elapsed. The executor and the widow, Angele Smith, applied to court to have the claim dismissed because the limitation period expired.

The children argued that the executor and the widow could not in these circumstances rely on the limitation period. In legal terms, the executor and widow were estopped from invoking the limitation period. The executor had not used reasonable efforts to locate and notify the children of the application for the grant of probate. Nor had the executor applied to court to dispense with the requirement that they be notified.

Mr. Justice Bracken, in Desbiens v. Bernacki, 2008 BCSC 696, agreed with the children’s argument. He held that they could proceed to trial with their claim, despite the expiration of the six-month limitation period.

In his reasons for judgment, Mr. Justice Bracken commented on the diligence required of an executor or person applying to be appointed an administrator to see that those who are entitled to notice are likely to receive the notice as follows:

[40] In my view, when an Executrix or Administrator is sending Notices intended to comply with s. 112(1) of the EAA [Estate Administration Act], she should have some confirmation that the address used is one that will likely reach the recipient. In most cases, the familial relationship is such that the address is known to be current and active. Where, as here, there is simply an address for individuals who have been long out of touch with the Testator without any additional information as to the currency or accuracy of the address, the Executrix is required to take some further reasonable steps to confirm that a Notice sent to that address will likely reach the intended recipient. If that information cannot be obtained through inquiry or investigation then the Executrix must make application for directions or dispensation of Notice under s. 112(3) of the EAA.

[41] In this case, the names in the address book were the Christian names of the plaintiffs only and there was no information to suggest the addresses were current ones. The Executrix knew that the plaintiffs could not have been in a close relationship with the Testator and she could not expect that the addresses in the book were the correct ones for the plaintiffs. In my view, the Executrix did not take reasonable steps to ascertain the then-current addresses of the plaintiffs. There is no evidence in the material filed in support of this application that the Executrix took any steps to verify that the addresses were current. In fact, it appears that the addresses may have been incomplete as well as out of date, as there is evidence before the court that all three of the addresses refer to multi-dwelling buildings, and there were no apartment numbers in the addresses used by the Executrix. The plaintiffs submit that the Executrix should at a minimum have conducted some inquiries to attempt to locate the plaintiffs.

[This decision was appealed to the Court of Appeal, which varied Mr. Justice Braken's order by ordering that the original grant of probate be revoked, and a new grant of probate be issued. The effect is the same: the children can proceed with their claim. I discuss the appeal decision here.]