Wills Variation Claims Are Generally Well Suited For Summary Trial Disposition

Summary Trial Disposition

Wills Variation claims in British Columbia are generally speaking well-suited for a summary trial disposition.

A summary trial is heard by a judge who reads at affidavit materials and listens to submission by counsel.

This is supposed to the more traditional route of witnesses testifying in the witness stand.

A summary trial proceeding is generally speaking faster, cheaper, less stressful, and quicker to be tried that the traditional route.

Where a summary trial will definitely not work, is when there is a discrepancy in the credibility amongst the major witnesses in the trial.

The Court is very loathe to determine an important issue such as credibility based on an affidavit, rather than viewing the demeanor of the witness in the witness stand

In making a determination whether a trial should be heard summarily, the general rule is set out in Inspiration Management Ltd. v.McDermid St. Lawrence Ltd., 1989 CanLII 2728 (BC CA), (1989), 36 BCLR (2d) 202 (C.A.). Mr. Justice McEachern C.J.B.C., for the court, stated:

[48] In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.

[10] In RC Hotel Ventures Ltd. v. Meristar Sub 2C, L.L.C., 2008 BCSC 918 (CanLII), 2008 BCSC 918, at para. 13, Mr. Justice Masuhara listed a variety of factors that may be considered in assessing the suitability of a trial being heard by summary trial. These factors are:

(a) A court should be reluctant to decide isolated issues in the absence of a full factual matrix and should not decide issues on the basis of assumed facts.

(b) While the court may in certain circumstances resolve issues and find facts in the face of conflicting evidence, it should be reluctant to do so where there are direct conflicts in affidavit evidence, the resolution of which will require findings with respect to credibility.

(c) A court should be reluctant to resolve factual issues in the absence of admissible evidence where such evidence may well be tendered in admissible form at a subsequent trial.

(d) A court should be reluctant to “slice off” and decide isolated issues and circumstances where resolution of those issues will not resolve the litigation or will only resolve the litigation if answered in a particular way. In such circumstances, the 18A applicant will be required to demonstrate and the court expected to decide that the administration of justice including the orderly and effective use of court time will be enhanced by dealing with the separate issue brought forth by the applicant.

(e) The matter will not suitable for resolution by Rule 18A where resolution of a particular issue or issues in the summary trial will require that the court make findings or rulings which will impact on parties or issues which are not before the court on the application. In particular, the court hearing the summary trial must not decide the issues on the basis of facts which might be inconsistent with the findings of the judge at trial.

(f) In some cases, the complexity of the issues raised or the volume of the material before the court may be such that the matter is unsuitable for resolution by summary trial.

As a matter of practice, disinherited.com attempts to resolve most of her estate litigation disputes by mediation or summary trial firstly, rather than resorting to a trial by witnesses.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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