The Supreme Court Civil Rules provide that a proceeding to prove the validity of a will must be started by either a notice of application, if there is an existing proceeding in which it is appropriate to do so, or by a petition. This is set out in Rule 25-14(4). This is a significant change to the practice. Prior to the changes to the Rules with the coming into force of the Wills, Estates and Succession Act, contested proceedings to prove a will were brought by a notice of civil claim. A proceeding begun by Notice of Civil Claim is referred to as an “Action.” The difference is that an Action has pretrial procedures such as disclosure of documents, and oral examinations for discovery, and ultimately a trial with witnesses testifying in court. In contrast, a notice of application or petition does not have the pretrial disclosure process and the evidence is by way of affidavits.

The changes in the procedure may have significant implications for someone challenging a will, perhaps on the grounds that the will-maker did not have the mental capacity to make a will or was unduly influenced. The person making the claim often will not have as much information as the person seeking to uphold the will, often the named executor. Successful challenges of wills may depend on obtaining pretrial disclosure from the other parties, as well as information from persons who are not part of the lawsuit. Accordingly, the Rule change may tend to work against those challenging a will, including those with meritorious claims.

Fortunately, the Supreme Court Civil Rules allow the application to prove a will to be converted into an Action. Rule 22-1(7)(d) allows the court to convert an application or petition into an action. Rule 25-14 (8) allows the court to give directions about procedure in estate maters and includes such things as ordering examinations for discovery and discovery of documents and how the evidence will be presented.

How difficult is it to persuade the court to convert a proceeding to prove a will into an Action? The criteria were recently considered by the British Columbia Court of Appeal in Kerfoot v. Richter, 2018 BCCA 238. In this case, Mary Richter is claiming that her mother, Bernice Richter’s will dated July 19, 2012 is invalid. In the will, Mary Richter’s brother and sister are each left 45 percent of the residue of their mother’s estate and she is left the other 10 percent. She alleges that her mother did not have capacity to make the will and that her mother was unduly influenced to make the will.

The named executor, Mr. Barry Kerfoot, brought a petition in accordance with the Rules to prove the validity of the will in solemn form. Mary Richter applied to convert the proceeding into an action, and the Supreme Court Judge hearing the application dismissed her application. She appealed to the Court of Appeal.

In allowing the appeal and ordering that the proceeding be converted into an action, Madam Justice Fisher applied the decision in BritishColumbia (Milk Marketing Board) v. Saputo Products Canada G.P. / SaputoProduits Laitiers Canada S.E.N.C., 2017 BCCA 247, which held that a proceeding brought by petition should be converted into an Action if there are disputes of facts or law, unless the party requesting a trial is bound to lose.

Madam Justice Fisher wrote that the judge hearing the application should not weigh the evidence. She wrote at paragraph 27:

[27] In my view, the Saputo test precludes a judge from weighing evidence. Applying Robertson v.Dhillon, 2015 BCCA 469, this Court confirmed that the test is akin to the test to be applied for summary judgment: whether, on the relevant facts and applicable law, there is a bona fide triable issue. In the context of this case, where there are factual disputes, the chambers judge was to determine whether Mary, as the party requesting the trial, was bound to lose; more particularly whether there was a triable issue with respect to Bernice’s testamentary capacity or the issue of undue influence.

The judge hearing the application may, however, consider affidavit evidence as well as the pleadings in determining whether there is a triable issue. Madam Justice Fisher wrote:

[31] While a judge is not to weigh evidence, he or she may draw inferences that are strongly supported by undisputed facts. Importantly, a party seeking to establish that there is a triable issue cannot rely on mere allegations but must establish the existence of material issues: Canada (Attorney General) v. Lameman, 2008 SCC 14 at para. 11. It is this latter requirement that precludes a matter from being referred to trial on the basis of mere assertions.

In this case, the Court of Appeal found that Mary Richter had sufficient evidence to establish a trial issue. Madam Justice Fisher wrote:

[34] I appreciate the chambers judge’s concerns about the weakness of Mary’s evidence, as some of it went no further than mere allegations. However, the fact that Mary had no first-hand knowledge of the events leading up to the making of the impugned will is hardly surprising given the nature of the issues. Proving undue influence is not easy. Section 52 of WESA has shifted the onus of proof to the defender of a will once the person challenging it has shown that the testatrix was in a relationship of dependency with the person alleged to have exerted undue influence, or one in which the potential for domination existed. [35] Undue influence may be established through circumstantial evidence. Mary’s pleadings and evidence contain conclusory statements about many of the events leading up to the execution of the impugned will, but they also raise factual issues from which inferences of undue influence could be drawn. These issues relate to Bernice’s advanced age and declining health, her dependence on John and Janet [Mary Richter’s brother and sister] at the relevant times, John and Janet’s advance knowledge of the impugned will, and the marked difference between the impugned will and the prior wills. Mary also provided direct evidence contradicting most of the reasons expressed in the impugned will for disinheriting her.

As I interpret this decision, the party seeking to convert the procedure into an action will generally not be required to have significant evidence (which as noted above, may be difficult for a party challenging the will to obtain without document discovery and examinations for discovery) but must have some basis for demonstrating that there is a triable issue.

This brings me to my criticism of the changes to the Rules when the Wills, Estates and Succession Act came into force. Although a proceeding to prove a will may be relatively easy to convert into an Action, it requires an additional step in the lawsuit, namely the application to court to convert the proceeding. This just adds extra legal expense. It would be preferable if the Rules were changed to allow a proof of a will proceeding to be started by a notice of civil claim.