Waslenchuk estate 2020 BCSC 1929 dealt with a common issue in estate litigation- when will wills made in other jurisdictions apply to British Columbia- the issue usually is resolved by where was the deceased ordinarily resident.
Section 101 of WESA provides that regardless of where a will is made, the administration of an estate of a deceased person who was ordinarily resident or domiciled in British Columbia at the date of the person’s death is governed by the statute.
A person is ordinarily resident in the place where, in the settled routine of their life, they regularly, normally, or customarily live. It is not determined by counting the number of days a person spends in the jurisdiction: Cresswell v. Cresswell Estate, 2017 BCSC 178at para. 26,
The court cited Blazek v. Blazek, 2009 BCSC 1693 at paras. 31- 33.
Ordinarily Resident
Section 3 of the WESA provides that the court has territorial competence in a proceeding if the person is “ordinarily resident in British Columbia at the time of the commencement of the proceedings.”
The meaning of “ordinarily resident” has been considered by the courts on many occasions.
The authority often referred to is Thomson v. Minister of National Revenue (1945), [1946] S.C.R. 209, [1946] C.T.C. 51 (S.C.C.), where Mr. Justice Estey stated:
“A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question. ”
“ordinarily resident” should be given a broad and liberal interpretation, in accordance with the provisions of the Act regarding corporations ordinarily resident in the province; “ordinarily resident” does not require a counting of days in which a party may spend in this jurisdiction. One can be ordinarily resident in more than one jurisdiction.
. . . . .
It is well established that a person may have more than one residence…
Domicile is based on a person’s choice to fix voluntarily their sole or chief residency in a particular place with an intention to continue to reside there for an unlimited time: Sato v. Sato, 2017 BCSC 1394at paras. 7-10, 14, aff’d 2018 BCCA 287 at paras. 45-48, 51, 53.
