Summary Trials and Wills Variation Act Claims

Not all civil trials in British Columbia are conventional trials in which each of the witnesses testify in person. Rule 9-7 of the Supreme Court Civil Rules (formerly Rule 18A of the Supreme Court Rules) allows the court to hear a case on the basis of affidavit evidence.

Any party can apply to have the trial proceed summarily on affidavit evidence. If an application for a summary trial is made, the court may make a decision based on affidavit and other written evidence such as excerpts from examination for discovery transcripts, but only if the court may make sufficient findings of facts on the evidence to decide the issues of fact and law. The court must also be of the opinion that it is just to make a decision on the basis of the summary trial evidence.

If the court is unable to make sufficient findings of facts, or considers it unjust to decide on the basis of the materials filed, then the judge may dismiss the summary trial application, in which case the parties will have to have the case determined by a full trial. The summary trial rules also permit a judge to order that the witnesses or some of them be cross examined on the affidavits before making a decision. This can result in a hybrid procedure that requires witnesses to testify in court, but is not a full trial.

Summary trials are most effective when many of the facts are not in dispute, or where those facts that are in dispute can be determined by independent evidence such as documents, or evidence of neutral witnesses. A summary trial may reduce court time in costs when used in the right case.

On the other hand, where the case turns on the credibility of certain witnesses, a summary trial may not be effective.

I have noticed that quite a few Wills Variation Act cases are being decided on the basis of affidavit evidence at summary trials. Some Wills Variation Act cases seem to lend themselves well to summary trials.

I was curious as to how often summary trial are used in Wills Variation Act cases. I searched the B.C. Superior Court websites for cases decided in the Supreme Court of British Columbia for 2008, 2009, 2010. I found 27 cases. 12 were summary trials, and 15 were conventional trials (two of which were heard together).

I have listed the cases, and the number of days of trial for each below:

Wills Variation Act cases determined by summary trials during 2008 - 2010:

Hutchison v. Weidman Estate 2010 BCSC 1356 (1 day);
Haegedorn v. Haegedorn, 2010 BCSC 836 (1day);
Smith v. Smith, 2009 BCSC 1737 (1 day);
Gould v. Royal Trust Corp. of Canada, 2009 BCSC 1528 (4 days);
Martinson v. Anniko, 2009 BCSC 1104 (1 day);
Waldman v. Blumes, 2009 BCSC 1012 (4days);
Viberg v. Viberg, 2009 BCSC 27 (2 days);
MacKinlay v. MacKinlay Estate 2008 BCSC 994 (2 days);
Tomlyn v. Kennedy, 2008 BCSC 331 (1 day);
Crowley v. Walkhouse, 2008 BCSC 319 (1 day);
Graham v. Chalmers, 2008 BCSC 1246 (1 day);
Fuller v. Fuller Estate, 2008 BCSC 702 (1 day).

Wills Variation Act determined by conventional trials during 2008-2010:

Atwal v. Atwal , 2010 BCSC 1261 (20 days);
Nightingale v. Hepting, 2010 BCSC 1214 (3 days);
Mawdsley v. Meshen, 2010 BCSC 1099 (8 days);
Schipper v. De Lange, 2010 BCSC 1067 (4 days);
Hall v. Dow, 2010 BCSC 529 and Hall v. Hall, 2010 BCSC 528 (6 days heard together);
McBride v. Voth, 2010 BCSC 443 (6 days);
Rose v. Bloomfield, 2010 BCSC 315 (3 days);
Mazur v. Berg, 2009 BCSC 1770 (5 days);
Lamoureaux v. Kalyk, 2009 BCSC 584 (8 days);
Todd v. Walker, 2009 BCSC 677 (4 days);
Sikora v. Sikora Estate, 2009 BCSC 195 (5 days);
Petrie v. Burnett, 2008 BCSC 1503 (6 days);
K.D.M.B. v. Taylor, 2008 BCSC 1498 (5 days);
Stone v. Campbell, 2008 BCSC 1518 (5 days).

It should be noted that some of these decision involved other issues in addition to a Wills Variation Act claim, which will tend to lengthen the trial.