The BC Supreme Court in Kelowna recently released an interesting decision which illustrates the importance of proper procedure in estate litigation claims. In the case of Schell Estate (Re) 2019 SCSC 2168, Madame Justice Norell delivered written judgment in respect of a costs hearing that stemmed from a Kelowna Probate Proceeding and a wills variation action that were improperly pleaded.
The circumstances of the case involved a disinherited son who made a claim that the will of his father was invalid but at the same time argued that the court should vary his father’s will pursuant to its legislative jurisdiction. The problem was the way in which the allegation was framed.
According to the Rules, the validity of a will must be brought by the executor of an estate in an existing proceeding or petition which is called a proof in solemn form action. It is generally improper to include both a wills variation claim and an action for proof of will in solemn form in the same proceeding because a valid will is a condition precedent to a variation proceeding.
Simply put, a litigant can’t put the cart before the horse in estate litigation proceedings.
The Plaintiff in this case was unrepresented, meaning he did not have a lawyer. Still, the court awarded costs against him for improperly filing and proceeding with his claims in the wrong order. This case illustrates not only the importance of proper procedure in estate litigation claims but also knowing when to seek legal advice.
Read the full judgement here.