Improper Use of Caveats in Estate Disputes

[Since I wrote this post, the decision I discuss below has been overturned by the British Columbia Court of Appeal at 2010 BCCA 111.]

As I wrote in a previous post, In British Columbia, if you wish to oppose probate of a will you believe to be invalid, you can file a caveat, which will prevent the issuance of probate for six months, unless the will is proven in solemn form in court.

But you should not file a caveat unless you have some basis for challenging a grant of probate of a will or a grant of letters of administration. It is not appropriate in every case.

For example, in a recent decision of the Supreme Court of British Columbia, Chang Estate v. Chang, 2009 BCSC 529, Madam Justice Loo ordered that a caveat filed by one of the deceased’s sons be cancelled, and ordered him to pay special costs to the executor.

The deceased’s son, Da Wei Chang, had a dispute for several years with his parents concerning property they bought in Surrey. They had put the title into a joint tenancy with him, but severed the joint tenancy after he sued them in Small Claims Court.

After his mother’s death (his father having died earlier), he filed several caveats, which prevented his sister, the executor, from obtaining a grant of probate. The claims as set out in his caveats and in his Statement of Defense and Counterclaim are very confusing. His claims seem to be that his mother owed him money, and that his parents acted improperly in severing the joint tenancy. There was also some dispute over property they once had in Shanghai.

On an application by his sister to cancel the caveat, Madam Justice Loo found that Da Wei Chang did not have any valid claim to prevent probate and ordered the caveat cancelled.

She found that his actions in filing several caveats without foundation were vexations and an abuse of process. Accordingly, she ordered special costs against him. An award of special costs will fully or almost fully cover the other party’s actual legal costs. In British Columbia, the court may order special costs to punish a party for his conduct in the litigation.