In Eckford v. Vanderwood, 2014 BCCA 261,
the British Columbia Court of Appeal (the
"Court") was faced with an appeal of a
wills variation action. At trial, the application to vary the
Will was denied. On appeal, the Court dismissed the appeal
and upheld the trial decision, thus refusing to vary the Will.
The common law spouse ("Ms. Eckford")
of the will-maker ("Mr. Vanderwood")
sought to vary the Will pursuant to section 2 of the Wills
Variation Act ("WVA", now
repealed). This section has remained unchanged in the
new Wills, Estates and Succession Act
("WESA"); the relevant
provision of WESA is section 60. Ms. Eckford and Mr.
Vanderwood had been living in a marriage-like relationship for
approximately four years before Mr. Vanderwood died unexpectedly in
a motor vehicle accident.
Ms. Eckford was not provided for in Mr. Vanderwood's Will.
However, the Court noted that she did inherit Mr.
Vanderwood's half interest in their home through the right of
survivorship. The home was Mr. Vanderwood's most valuable
Of particular interest in this case is the Court's
discussion of how appeals in wills variation actions put the
Court in the same position as a trial court.
The Court stated this directly at paragraph 40 of the
"An unusual feature of wills variation jurisprudence is
that an appellate court is in the same position as the trial judge
and is not required to defer to the trial judge's discretion
except on matters based on oral testimony."
In this case, there was no oral testimony at trial. The
parties had agreed to a Summary Trial and, therefore, all evidence
was provided by way of affidavits. The Court noted that there
were no previous decisions dictating the standard of review in a
wills variation action where the evidence is limited to affidavits.
The Court stated that it could think of no principled reason
why findings made on affidavit evidence should be dealt with
differently in wills variation than in other actions. In
other actions (namely, actions other than wills variations), the
Court's general rule is that where evidence consists entirely
of affidavits, the standard of review is that findings of fact
should only be set aside if the finding was clearly wrong or was
not reasonably supported by the evidence.
However, the respondents in this case did not raise the issue
and, as a result, the Court did not decide the issue.
Instead, the Court accepted Ms. Eckford's submission that
the Court had an unfettered discretion to evaluate the evidence in
this case. The Court thus undertook the usual
Tataryn analysis and considered the will-maker's legal
and moral obligations. The Court ultimately concluded that
Ms. Eckford had been adequately provided for, and refused vary the
It remains to be seen whether or not a court would find that the
standard of review should be different for wills variation appeals
depending on whether the evidence at trial is from live witnesses
or affidavits. This is an issue for another case.
Thank you to Cheryl Kornder for her assistance in drafting this
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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