WESA & Jurisdictional Challenges – Part 1

One of the issues that is arising frequently in Estate Litigation is questions regarding the appropriate jurisdiction for where a claim should be litigated. When a deceased person has assets in multiple provinces, the location of the litigation can be particularly significant given that the Wills Estates and Succession Act here in British Columbia provides wider discretion for wills variation claims brought by spouses and children then in other jurisdictions.


In the recent decision of Cresswell v. Cresswell Estate, 2017 BCSC 178, the Honourable Mr. Justice Cole had to rule on application by the Defendant Executrix and three of the Deceased’s children for an Order that the Supreme Court of British Columbia did not have the jurisdiction or that it should decline to exercise territorial competence and that the matter should be heard in Alberta. The husband of the Deceased was the Plaintiff in this case and he had been disinherited from the will of his late wife.


The first issue to be determined by the Court was whether the Deceased was an “ordinary resident” in British Columbia. Mr. Justice Cole referred to the case of Blazek v. Blazek2009 BCSC 1693 and made the following comments in determining that British Columbia had the jurisdiction to hear the matter:


[26]        The term “ordinarily resident” has been interpreted by the Court     in Blazek v. Blazek2009 BCSC 1693 (CanLII), at paras. 31-35:

[31]      Section 3 of the Act 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.” Although the evidence is somewhat conflicting, it appears that at the time this action was commenced in 2007, the defendant split his time between the Czech Republic and Kelowna, British Columbia. There is a dispute between the parties regarding whether the amount of time the defendant spent in British Columbia was more or less than 150 days.

[32]      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 Revenue1946 CanLII 1 (SCC), [1946] S.C.R. 209, [1946] C.T.C. 51, 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. …

It is well established that a person may have more than one residence…

[33]      I am satisfied that the defendant resided in both places in 2007. I agree with the plaintiff’s position that “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.

[34]      I am satisfied that the defendant was ordinarily resident in British Columbia. He was served with the writ of summons and statement of claim in this action at the Kelowna address and he was a director and officer of a company which listed the Kelowna address as the defendant’s address at the time the action was commenced. Further, the defendant files his income tax in Canada and receives a pension in Canada.

[35]      On this test, the court has territorial competence to hear the matter.

Vancouver Wills and Estate Lawyers

If you are involved in Estate Litigation or believe that you have the legal right to challenge a will as a spouse or child of a deceased person, contact the Kushner Law Group today to schedule a consultation.



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