Trevor Todd and Jackson Todd have over 65 years combined experience in handling estate disputes.
Some estates disputes such as proving a will’s validity in solemn form must be brought by petition rather than a Notice of Civil Claim. The idea behind this is that a petition and it’s supporting affidavits might be tried summarily without having the resources of examinations for discovery and exchange of lists of documents.
In Fulton Estate 2026 BCSC 1929 there was inordinate delay in bringing a S.58 application to cure a note found in the trash of a hoarder’s home and attempt to prove that it was the deceased’s last true testamentary intentions. An application was brought to convert the petition into an action so that examinations for discovery would be available to investigate the reason for the inordinate delay in bringing the petition.
To dispense with a petition’s summary procedure in favour of an action requires a “good reason”, and “the mere fact that there is a triable issue is no longer a good reason”. Evidence is required to establish this “good reason”; otherwise, discovery would be “nothing more than a fishing expedition that will cause substantial cost and delay”.
Cepuran v. Carlton, 2022 BCCA 76 (“Cepuran”) at para. 158
Wilson Estate (Re), 2025 BCSC 457 (“Wilson”) at paras. 104, 108
- In Cepuran, the Court of Appeal held that in applications to convert a petition to a trial, “the court will need to be mindful of the object of the Rules set out in R. 1-3: to secure the just, speedy and inexpensive determination of every proceeding on its merits, and so far as can be achieved, in ways that are proportionate to the amount involved, the importance of the issues, and the complexity of the proceeding.”
Cepuran, para. 166
- The Foundation bears the onus of establishing that the remedy it seeks, namely the conversion of this petition into an ordinary trial process, is appropriate.
Wilson at para. 103
- At para. 165 of Cepuran, the Court outlined factors that may be considered on this question, which were summarized at para. 51 of Boffo Developments (Jewel 2) Ltd. v. Pinnacle International (Wilson) Plaza Inc., 2009 BCSC 1701 as including:
(a) the undesirability of multiple proceedings;
(b) the desirability of avoiding unnecessary costs and delay;
(c) whether the particular issues involved require an assessment of the credibility of witnesses;
(d) the need for the Court to have a full grasp of all the evidence; and
(e) whether it is in the interests of justice that there be pleadings and discovery in the usual way to resolve the dispute.
