The litigant did not present an arguable case that would justify granting leave to sue
The BC Supreme Court recently denied an application to initiate legal proceedings on behalf of a deceased father's estate against his spouse.
The applicant sought permission under s. 151 of the Wills, Estates and Succession Act (WESA) to challenge changes made by her spouse to her will, which allegedly disinherited her by naming only the spouse's two biological children as beneficiaries.
The applicant, the only biological child of the deceased father, filed a lawsuit seeking a variation of the will, claiming it failed to provide adequate provision. The claims included allegations of unjust enrichment and sought a declaration that the spouse holds a one-half interest in the family home and other assets in trust for the estate. The applicant intended to continue this action on her behalf and as a representative of the estate if granted leave.
The applicant argued that the father had contributed to joint assets with the spouse during their marriage. She stated that the spouse’s new will, made after the father's death in May 2022, disinherited her by leaving the residue of the estate solely to the spouse’s biological children.
The applicant's affidavit described the father’s financial contributions, while the spouse’s affidavit outlined her financial independence and management of the family home. The spouse argued that she used proceeds from a previous marriage to purchase the home and maintained separate finances throughout her relationship with the deceased.
The Supreme Court found no evidence of a binding agreement between the father and the spouse that would prevent either from changing their wills. The court also noted inconsistencies in the evidence presented by the applicant, particularly regarding the father's alleged contributions to the family home.
The applicant's argument relied heavily on the doctrine of mutual wills, which requires unequivocal evidence of an agreement that neither party would alter their will without the other’s consent. The court found no such agreement in this case, as there was no indication in the wills or other evidence that the parties intended to be bound by such an agreement.
The applicant also argued unjust enrichment, claiming the spouse held the father’s assets in trust. However, the court found that the terms of the father’s will, which left his estate to the spouse, provided a legal basis for her to retain the assets, negating any unjust enrichment claim.
The BC Supreme Court concluded that the applicant did not present an arguable case that would justify granting leave to sue the spouse on behalf of the father’s estate.
