Sunday, March 28, 2021

B.C. Supreme Court Civil Rules for Contested Wills Should be Changed


Seven years ago, the British Columbia probate rules were overhauled when the Wills, Estates and Succession Act came into effect on March 31, 2014. The changes to the Supreme Court Civil Rules were intended to reduce the complexity and costs of proceeding related to wills and estates. In my experience some of the changes, particularly related to litigation concerning the validity of wills, has had the opposite effect, making litigation more complex and expensive. It is time for a review of the rules.

Most wills in British Columbia are not contested, and the process for probating (in other words proving) a will is not particularly complex. It involves the executor providing notice to beneficiaries and certain relatives of the deceased, and then filing the original will, a submission and affidavits.

But when someone argues that the will is invalid, then it is usually necessary to follow a different process referred to as “proving the will in solemn form.” This is a contested proceeding in which the Supreme Court of British Columbia determines whether the will is valid. These disputes often center around questions about whether the will-maker knew and approved of the contents of the will, had the mental capacity to make the will, and whether she was acting freely and voluntarily, as opposed to being pressured to make her will. Although many of these cases do settle, when they don’t it is usually necessary for each party to conduct a full investigation of the case, including examining the opposing party before trial, obtaining the file from the lawyer who prepared the will, and if capacity is in question getting the medical files and obtaining expert medical and psychological opinions. The facts may be hotly contested. Ultimately, the court may need to determine the validity of a will after a full trial, in which witnesses testify and are cross examined.

Before the Rules were changed in 2014, proving a will in solemn form was usually commenced by a notice of civil claim. This is the method most lawsuits involving contested facts are commence in British Columbia, from personal injury claims to wills variation proceedings. The notice of civil claim sets out the claim, the material facts alleged in support of the claim, and a summary of the legal basis for the claim. The defendants may file responses. Then each party is required to list all of the documents in their possession or control that may prove or disprove a material fact, and each party may examine the adverse parties under oath before trial. There are also rules intended to facilitate obtaining information form third parties. Ultimately, the issues are determined by a trial, although in some cases the trial may proceed on the basis of affidavit evidence, particularly where the conflicts in the evidence may be resolved without live testimony.

When the Rules were revised in 2014, they required that a proof-in-solemn form proceeding must be commenced either by an application in an existing lawsuit, or by petition. This is set out in Rule 25-14.  here is no provision allowing someone to begin the process by a notice of civil claim. Although the old rules did provide for a petition in some cases, these were rare and claims were commenced for the most part by a notice of civil claim.

A petition is a useful process for certain types of clams. For example, Rule 2-1 (2) (c) provides that a proceeding may be commenced by a petition if “the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract or other document.” A proceeding to interpret a will, where there is no question of its validity, can usually be resolved on the basis of the will itself, and affidavit evidence setting out the surrounding circumstances, such as the relationships between the will-maker and the beneficiaries. The contest is usually about how to interpret the will and facts, as opposed to a dispute about what the facts are (there are of course exceptions). Examinations for discovery and oral testimony are usually not required for the court to resolve the dispute. Petition proceedings are generally less expensive than a trial.

The problem is that petitions do not lend themselves to deciding the types of issues that arise when the validity of a will is contested. Fortunately, there are other rules that allow the court to change the process from a petition-type of proceeding to an action, or do give further directions on the process. These rules are set out in 22-1 (7) and 25-14 (8).

In practice what often happens is that the person wishing to commence a proof in solemn form proceeding will have to prepare, file and serve a petition together with supporting affidavits. Then either the petitioner or one of the respondents makes an application to convert the process into an action, or in other words, the type of process that is brought by notice of civil claim. Often, the order requires a notice of civil claim to be filed and served. The end result is that both time and money have been consumed by beginning the process with a petition and affidavits and then proceeding with a notice of civil claim. I have not kept track of the additional expense, but I suspect this process probably adds between $10,000 and $20,000 to most contested wills proceedings, and it takes additional court time because a judge or court master will often hear the application to change the process.

The other thing I have noticed is that some lawyers are ignoring the Rules altogether and beginning a proof in solemn form proceeding by a notice of civil claim.

I am not aware of any planned reviews of the probate rules, but it is time that the Supreme Court Civil Rules Committee did so.

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