Claim Dismissed For No Standing

Claim Dismissed For No Standing

Re Tomlinson Estate 2016 BCSC 1223 dealt with a nephew contesting his aunt’s will when he was neither a named beneficiary under the will or an intestate heir had his claim dismissed for lack of standing.

Standing is a pre-requisite to advancing claims regarding a will. Standing, in this context, means having a legal interest in the outcome of the action. 

Or in other words, that the legal rights of the person asserting a claim or position will be affected by the result of the proceeding.


[23]         In Neumann v. Chudjak Estate, 2001 BCSC 957 (chambers), the deceased left the residue of his estate to the defendants, his neighbours.  The plaintiff was the stepson of the deceased.  The plaintiff made claims in trust.  He also sought a declaration that the deceased’s will was invalid by reason of lack of capacity and undue influence.  The defendants applied under then Rule 18(6) to dismiss the validity claims.

[24]         The court struck the challenges to the will finding the plaintiff had no standing to raise the challenge.  At paras. 8–12 Master Horn wrote: 

[8]        It is agreed that the deceased has no living blood relatives.  Helmut Neumann [the plaintiff], not being a blood relative of the deceased, will not inherit upon an intestacy.  It is not alleged that there is an earlier will under the terms of which the plaintiff Helmut Neumann would have inherited.

[9]        Accordingly, if the will were to be set aside on either of the grounds pleaded, Helmut Neumann will not benefit.  The entire estate will, if he does not succeed in his trust claim, escheat to the Crown.

[10]      The question now raised by the defendant’s application, is whether Helmut Neumann has any standing to contest the validity of the will.

[11]      A plaintiff must, to have standing in an action, be legally interested in the outcome of an issue in the action.  A person is legally interested in the outcome if it will affect him by advancing or curtailing his legal rights.  (See Amon v. Raphael Tuck & Sons Ltd. (1955), [1956] 1 Q.B. 357 (Eng. Q.B.)at pages 381 and 386.)  As Professor Hogg has said, (Constitutional Law of Canada, 4thEdition, s. 56.2)

The question whether a person has “standing” (or locus standi) to bring legal proceedings is a question about whether the person has a sufficient stake in the outcome to invoke the judicial process.  The question of standing focuses on the position of the party seeking to sue, not on the issues that the lawsuit is intended to resolve.

[12]      I take it as a given that no stranger has any standing to contest the validity of a transaction such as a contract, gift or testamentary disposition of property.  In relation to this will, the plaintiff is a stranger.

[25]         In British Columbia (Public Guardian and Trustee) v. Sheaffer, 2015 BCSC 1306, the defendants asserted that an unsigned document dated September 20, 2011, should stand as the deceased’s last will and testament rather than a properly executed will from 1974.  Madam Justice Dardi denied the relief sought, stating at para. 48 that, “Mr. Thurston is not a beneficiary of the Deceased’s estate.  He has no standing to pursue any allegation of wrongful conduct against the PGT with respect to her office’s administration of the Deceased’s estate”.

[26]         The Kamms are not beneficiaries under the will, nor would they inherit upon intestacy.  They are strangers to the will.  Their only interest in the estate is that of a creditor who alleges that the deceased owed them money for services rendered.

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