Ordinary Residence in Estate Litigation

While jurisdictional disputes are important in many differing types of litigation, in Estate litigation particularly, a determination with respect to jurisdiction can be critical as to whether a disinherited spouse or child can bring a claim for a variation of a will. Under the Wills, Estates and Succession Act (“WESA”), a person must be an “ordinary resident” of British Columbia at the time of their death for WESA to apply. If a person is found not be an ordinary resident of British Columbia, the party seeking to bring a wills variation case may be estopped from doing so. In the decision  of  Cresswell v. Cresswell Estate, 2017 BCSC 178, the Honourable Mr. Justice Cole was asked to determine an issue of jurisdiction in an application brought by the Defendants. The Deceased party in this case had resided in Alberta for most of her life, before moving to British Columbia in August 2014. In November of 2015, the Deceased was diagnosed with cancer and moved to Alberta later that month where she remained until her death in January 2016. At the time of her death, the Deceased owned real property in B.C. and had bank accounts in both B.C. and Alberta. Mr. Justice Cole came to the following conclusion:

 [27]   I am satisfied that the deceased had a settled intention to ordinarily reside in  Alberta when she moved there on November 14, 2015 and took up residence at her sister’s home. It is clear from the evidence that she intended to remain in Alberta to be around her family and although some of her comments that were transcribed by the plaintiff are inconsistent where she said, on November 19, 2015:  “[t]hat’s sad hopefully I will be back there in a few months”, referring to Westbank, and on January 14, 2016:  “One last thing I love you please remember that”. Those comments must be taken in context to her impending death. It is clear that she was applying for Alberta medical  coverage, she changed her mailing address on her Edmonton Royal Bank chequing  account to that of her sister, she had a will drawn up in Edmonton to be governed by the laws in Alberta, and it is clear from the telephone messages that she wished to sell the  home in Westbank. Her contacting a lawyer and attempting to commence divorce proceedings shows her intention to separate from the plaintiff as was the January 9, 2016    text:  “You said you were here for me and you are a liar. I want you out.”

If you are involved in an estate dispute or have an issue related to estate litigation, contact the Kushner Law Group today to schedule a consultation.

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