A Wills Variation Action ( S. 60 WESA) may Be commenced even after death of Disappointed Beneficiary by his or her personal representative as per Currie Estate v Bowen ( 1989) 35 BCLR (2d) 46.
In that case the husband died six weeks before his wife and his will made no provision for his wife.
The court held that the wife’s right of action under the wills variation act vested at the date of the husband’s death, and that the wife’s personal representative had the right to bring a wills variation action after her death.
They had been married 25 years and there were no children of the marriage. That husbands will made no provision for his wife and his estate was valued at $517,000`, and hers at $130,000.
The plaintiffs were the children of the wife from an early marriage, and the administrators of her estate.
The defendants were the husband’s executor and the children of the husband’s first marriage. The plaintiffs commenced an action under the wills variation act and the defendants applied to dismiss the action.
The court dismissed the application holding that the wills variation act gave the wife the right to claim and equitable share in her husband’s estate, a right which vested at the time of his death. Because the right to advance the claim was granted by statute, and was not founded in tort, and was broader than a claim for mere support or maintenance, the cause of action therefore survived death. Although the statute did not explicitly authorize the claim to be made by the personal representative of the deceased, that right was implied.
In Barker v. Westminster Trust Co., 57 B.C.R. 21,  3 W.W.R. 473, 614  4 D.L.R. 514 (C.A.), the Court of Appeal wrestled with this issue in an inconclusive way. O’Halloran J.A. held that an action under the Testator’s Family Maintenance Act survived the death of the claimant. He said at p. 478:
In the language of Lord Mansfield, cited supra, the appellant’s cause of action is founded in a duty which the testatrix owed him.
That duty was imposed by the statute when it provided the Court should intervene on the application of a wife, husband or child who claimed to have been deprived of “proper maintenance” in the will of the testator. It must follow therefore that the appellant’s right to apply under the statute passes to his executors. That being so, and the maxim actio personalis moritur cum persona being excluded, the objections to the motion to add the executors of the appellant as parties must fail.
And he concluded by saying, at p. 495:
In the circumstances I see no grounds for depriving the husband of that share in the estate of his wife which the policy of our law has indicated to be adequate, just and equitable if she had not made a will.
He went on to rely on s. 13 of the statute to which reference has been made above. McDonald J.A. came to the opposite conclusion. His opinion is summarized at p. 496:
It seems however advisable to consider the question on broader lines as well. The long title of the Act shows that it is an Act to secure adequate and proper maintenance for the persons entitled to apply and under sec. 3 the Court is to give for that purpose what is “adequate, just, and equitable in the circumstances.”
The peculiar nature of these powers if fairly obvious; though the terms “just” and “equitable” are used they cannot be used in the technical sense, for no standard is provided, and “justice” and “equity” in the legal sense presuppose some standard. Obviously the statute uses these terms in a popular and looser sense; the Court is to apply moral or ethical standards. The Court is to be governed by the applicant’s needs and moral claims and not by anything resembling legal rights.
Sloan J.A. gave the third decision, and while he aligned himself with O’Halloran J.A. in the result, he found it unnecessary to come to a conclusion at this point.
Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 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.