Weaver Estate v Weaver 2022 BCCA 79 clarified the law in British Columbia that an administrator of an estate of a separated and deceased spouse may commence a claim for the division of family property and family debt after the spouse’s death.
The property interest underlying the cause of action crystallized on the separation of the spouses and did not abate on death.
The Family Law Act (FLA) :
The FLA governs the division of family property and family debt in British Columbia.
Section 81 stipulates that on separation each spouse is entitled to an undivided half interest as a tenant in common in all family property and is equally responsible for family debt.
Family property includes all non-excluded real and personal property that is owned by at least one spouse on the date of separation ( SS 84(1) ,85)
A former spouse includes an individual who meets the criteria of the definition of a spouse in section3(1) FLA who is separated before the legislation came into effect. ( Newton v Crouch 2016 BCCA 115 at para. 35,56,69.
The fact that separation occurred before enactment does not preclude those individuals from commencing a claim for the division of family property and family debt, subject to the time limits established by section 198 that states a spouse must initiate their court action no later than two years after the granting of a divorce or the date on which the marriage was declared a nullity.
Rule 8-2 , provides that in defined circumstances, the family law case may continue notwithstanding the death of a spouse.
Rule 20-6(1) provides that a family law case may be started by a litigation representative in defined circumstances which includes a person who has died before starting a family law case in relation to that cause of action.
Section 150 WESA also provides that a cause of action or proceeding is not annulled by reason only of the death of a person who had the cause of action or a person who is or may be named as a party of the proceeding.
It further provides that the personal representative of the deceased person may commence or continue a proceeding, the deceased person could have commenced a continued with the same rights and remedies to which the deceased person would have been entitled, if living.
Section 150 WESA has exceptions for libel, slander, and certain actions under the privacy act, as well as denying the representative of an estate the right to include recovery for damages for nonpecuniary loss or loss of future income following death. This is subject to the Family Compensation act and certain provisions of the Worker’s Compensation act).
At common law, the general rule was that causes of action predicated on property interest survived the death of the plaintiff.