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 Vanderwood”) sought to vary the Will pursuant to section 2 of the Wills Variation Act (“WVA”, now repealed).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 asset.

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 judgment:

“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 Will.

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 blog post.