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July 25, 2017 13:00 ET

Vancouver Lawyers Explain Jurisdictional Challenges in Estate Litigation

Vancouver lawyers publish ongoing blog series tackling WESA and jurisdictional challenges in Will and Estate Litigation

VANCOUVER, BC--(Marketwired - July 25, 2017) - The Vancouver lawyers at Kushner Law Group have published a blog addressing a frequently recurring scenario in Will and Estate Litigation. One of the issues arising today regards determining the appropriate jurisdiction under which a claim should be litigated when assets exist in different provinces. For more, go to: http://kushnerlaw.ca/wesa-jurisdictional-challenges-part-1/

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 than in other jurisdictions.

In the recent decision of Cresswell v. Cresswell Estate, 2017 BCSC 178, the Honourable Mr. Justice Cole had to rule on an application by the Defendant Executrix and three of the Deceased's children. This concerned an Order that the Supreme Court of British Columbia did not have jurisdiction, or that it should decline to exercise territorial competence and that the matter should be heard in Alberta instead.

The husband of the Deceased was the Plaintiff in this case and had been disinherited from the will of his late wife.

The first issue that had to be determined was whether the Deceased was an "ordinary resident" in British Columbia. Mr. Justice Cole referred to the case of Blazek v. Blazek, 2009 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. Blazek, 2009 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 Revenue, 1946 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.

The next instalment of the series will take a closer look at what the courts determined, as well the outcome of the case.

Make sure to come back and read part two. However, for assistance with estate litigation that may involve jurisdictional challenges, contact Kushner Law Group at 604-629-0432.

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The Kushner Law Group was founded on the principle that a small law firm should be able to offer the same level of legal advice as a big firm at an affordable cost. A unique combination of legal experience and creativity allows the professionals at Kushner to come up with creative and practical solutions for a variety of legal problems.

For additional information, please visit http://kushnerlaw.ca/ or call 604-629-0432.

Contact Information

  • Kushner Law Group
    Lars Kushner
    Phone 604-629-0432 Fax 604-689-4451
    Company website: http://kushnerlaw.ca/
    1008 Beach Ave #105