Difference between pages "Do You Have a Small Claim? (20:III)" and "Wills Variation Claims (16:VII)"

Revision as of 20:34, 4 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 4, 2020.

A. Application Under the Act

WESA gives the court the power to vary a will. Only the spouse of the will-maker or the will-maker’s children can commence an action to vary a will. However, it should be noted that in the situation of common-law spouses, one spouse can unilaterally terminate a relationship and thereby remove the will from the variation provisions in WESA. On the other hand, for married spouses, the spousal relationship can only be terminated by divorce. Please see Chapter Three: Family Law for more information regarding divorces. The limitation period for commencing an action to vary a will is 180 days from the grant of probate, per section 61(1)(a) of WESA.

A wills variation action is commenced by a claim that the will-maker failed to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” (WESA, s 60).

When determining what constitutes adequate provision in a will, courts have considered the following:

actual need, which varies with age and dependency;
justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;
will-maker’s intention and reasons for making their will; and
the size of the will-maker’s estate.

See Lukie v Helgason & Lukie, (1976) 26 RFL 164 (questioned) and Newstead v Newstead Estate (1996) 11 ETR (2d) 236 (BCSC) for detailed discussions of the above factors.

The Supreme Court of Canada’s decision in Tataryn v Tataryn Estate, (1994) 93 BCLR (2d) 145 provides a different focus for the determination of a wills variation claim. This is the leading authority in British Columbia on wills variation. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:

The will-maker’s legal obligations – maintenance and property allocations which the law would support during the will-maker’s lifetime; and
The will-maker’s moral obligations – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.

In the more recent case of Dunsdon v Dunsdon (2012) BCSC 1274 (CanLII) [Dunsdon], the court provides a list of overlapping considerations that "have been accepted as informing the existence and strength of a testator's moral duty to independent children:

Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other
Size of the estate
Contributions by the claimant
Reasonably held expectations of the claimant
Standard of living of the testator and claimant
Gifts and benefits made by the testator outside the will
Testator's reasons for disinheriting
Financial need and other personal circumstances, including disability of the claimant
Competing claimant and other beneficiaries"

As the court notes in Dunsdon, “[t]he concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.”

Where the size of the estate allows, surviving spouses and children are entitled to an equitable share under WESA, even in the absence of need.

The court may consider the applicant’s character or conduct, and variation may be refused on this basis (WESA, s 63(b)). If the estate is large and the spouse or children were not mentioned in the will, or they think they were inadequately or unfairly provided for, they should consult a lawyer. LSLAP cannot assist clients with wills variation claims.

NOTE: In a decision of the BC Supreme Court, Ward v Ward Estate, 2006 BCSC 448 and more recently in Lamperstorfer v. Plett, 2018 BCSC 89, it was held that a signed pre-nuptial agreement where both parties gave up any right or interest to the other’s estate was not determinative in a claim under the Wills Variation Act.

B. Definition of Spouse in WESA

The definition of spouse in section 2 of WESA reads:

(1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

(a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2 years.

(2) Two persons cease being spouses of each other for the purposes of this Act if, (a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [Property Division] of the Family Law Act, to arise, or (b) in the case of a marriage-like relationship, one or both persons terminate the relationship.

(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation, (a) they begin to live together again and the primary purpose for doing so is to reconcile, and (b) they continue to live together for one or more periods, totalling at least 90 days.

(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.

NOTE: See Gosbjorn v Hadley 2008 BCSC 219 for a list of factors used by the courts to determine if there is a marriage-like relationship. More recently, see the discussion in Connor Estate, 2016 BCSC 1934.

NOTE: In BH v JH, 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who has not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death.

C. Exclusion of Potential Beneficiaries

A will-maker who wishes to exclude a spouse or child should state precisely why the person is being “disinherited,” or why they are less than “adequately” provided for. LSLAP’s policy is not to draft a will where the will-maker wishes to exclude a spouse or child, or unevenly divide the assets between children. Such clients should be referred to a private lawyer unless the supervising lawyer gives approval.

As per section 60 of WESA, the court is not bound by the will-maker’s decision and reasons but may consider them. Therefore, the will-maker is not assured of success in their attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above: Section VI.A: Application Under the Act.

The chances of the will-maker’s will being upheld will be greater if the will-maker provides reasonable and rational reasons for the exclusion'. For example, where the will-maker has already given the person substantial benefits during their lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes.

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-{{REVIEWED LSLAP | date= August 4, 2021}}
+{{REVIEWED LSLAP | date= August 4, 2020}}
-{{LSLAP Manual TOC|expanded = smallclaims}}
+{{LSLAP Manual TOC|expanded = wills}}
-In order to have a legal claim, it must be recognised by the law.   A frivolous claim is one that does not disclose a legal cause of action, is incapable of proof, or is otherwise bound to fail.   A vexatious claim is one that is brought in order to annoy, frustrate, or antagonise the defendant.   A claim may be both frivolous and vexatious.
+== A. Application Under the Act ==
-If a claim is frivolous or vexatious, the claimant will lose and may be penalised up to 10% of the amount of the claim (Small Claims Rules, BC Reg 261/93, 20(5) [SCR]).   The penalty could be up to $8,750 on a $35,000 claim; it pays to research your cause of action and limit your claim to the proper amount.
+''WESA'' gives the court the power to vary a will. '''Only the spouse of the will-maker or the will-maker’s children can commence an action to vary a will'''. However, it should be noted that in the situation of common-law spouses, one spouse can unilaterally terminate a relationship and thereby remove the will from the variation provisions in ''WESA''. On the other hand, for married spouses, the spousal relationship can only be terminated by divorce. Please see '''Chapter Three: Family Law''' for more information regarding divorces. The '''limitation period''' for commencing an action to vary a will is '''180 days''' from the grant of probate, per section 61(1)(a) of ''WESA''.
+A wills variation action is commenced by a claim that the will-maker failed to “make adequate provision for the proper maintenance and support of the will-maker’s spouse or children” (''WESA'', s 60).
-== A. Types of Claims & Remedies ==
+When determining what constitutes adequate provision in a will, courts have considered the following:
+*actual need, which varies with age and dependency;
+*justifiable expectation based upon a dependency upon the will-maker or an actual contribution made by the claimant to the will-maker’s estate;
+*will-maker’s intention and reasons for making their will; and
+*the size of the will-maker’s estate.
-It is helpful to research each of the following types of claims to ensure that a claim falls within at least one of them. See Appendix G: Causes of Action for a partial list of specific causes of action. If you are unable to fit your claim into one of the listed categories, you should consult a lawyer to see if you have a cause of action.
+See ''Lukie v Helgason & Lukie'', (1976) 26 RFL 164 (questioned) and ''Newstead v Newstead Estate'' (1996) 11 ETR (2d) 236 (BCSC) for detailed discussions of the above factors.
-=== 1. Tort ===
+The Supreme Court of Canada’s decision in ''Tataryn v Tataryn Estate'', (1994) 93 BCLR (2d) 145 provides a different focus for the determination of a wills variation claim. This is the leading authority in British Columbia on wills variation. The court considered the following factors in deciding what constitutes an “adequate, just, and equitable” provision in a will:
-Torts are offences committed by one person against another. Examples include assault, battery, and negligence. Each tort has its own test and  defences. Tort law continues to evolve and a person planning to bring a claim in tort should research what must be proven to be successful and  which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer.
+*'''The will-maker’s legal obligations''' – maintenance and property allocations which the law would support during the will-maker’s lifetime; and
+*'''The will-maker’s moral obligations''' – society’s reasonable expectations, based on community standards, of what a judicious person would do in the circumstances.
-=== 2. Contract ===
+In the more recent case of ''Dunsdon v Dunsdon'' (2012) BCSC 1274 (CanLII) [''Dunsdon''], the court provides a list of overlapping considerations that "have been accepted as informing the existence and strength of a testator's moral duty to independent children:
-Contract law governs voluntary relationships between parties. It is a complicated and nuanced area of the law and a person planning to bring a claim in contract should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practicing lawyer.
+*Relationship between the testator and claimant, including abandonment, neglect and estrangement by one or the other
+*Size of the estate
+*Contributions by the claimant
+*Reasonably held expectations of the claimant
+*Standard of living of the testator and claimant
+*Gifts and benefits made by the testator outside the will
+*Testator's reasons for disinheriting
+*Financial need and other personal circumstances, including disability of the claimant
+*Competing claimant and other beneficiaries"
-'''NOTE:''' Courts will generally not enforce illegal contracts or dishonest transactions (See ''[http://canlii.ca/t/1djfx Faraguna v Storoz]'', [1993] BCJ No. 2114). However, ''[http://canlii.ca/t/1gd53 Transport North American Express Inc. v New Solutions Financial Corp.]'', 2004 SCC 7 states that a court may enforce legal portions of a contract, thus effectively severing the illegal portion. A common example involves contracts purporting to charge interest rates prohibited under s 347 of the ''Criminal Code''. The court will not enforce a term in a contract purporting to charge such a rate. (However,  section 347.1 exempts payday loans from criminal sanctions, if certain conditions are met; see [[Direct Sales, Future Performance, and Time Share Contracts (11:V)#G. Regulation of Payday Lenders and Criminal Rate of Interest | Section V.G: Regulation of Payday Lenders and Criminal Rate of Interest]] in Chapter 9: Consumer Protection).
+As the court notes in ''Dunsdon'', “[t]he concept of adequate provisions is a flexible notion and is highly dependent upon the individual circumstances of the case. The adequacy of a provision is measured by asking whether a testator has acted as a judicious parent or spouse, using an objective standard informed by current legal and moral norms. The considerations to be weighed in determining whether a testator has made adequate provisions are also relevant to the determination of what would constitute adequate, just and equitable provisions in the particular circumstances.”
-=== 3. Equity ===
+Where the size of the estate allows, surviving spouses and children are entitled to an equitable share under ''WESA'', '''even in the absence of need'''.
-The usual remedy for torts and breaches of contract is monetary damages. In circumstances where monetary damages are inadequate or where a  legal remedy is improper in the circumstances, the court may grant other relief such as an injunction. The Small Claims Court, pursuant to s 2  of the ''Small Claims Act'' [SCA] (''Small Claims Act'', RSBC 1996, c 430), has a limited inherent jurisdiction to grant equitable remedies. The Civil Resolution Tribunal, pursuant to s 118 of the ''Civil Resolution Tribunal Act'' [CRTA] (''Civil Resolution Tribunal Act'', SBC 2012, c 25), has the same limited jurisdiction. A party seeking an equitable remedy such as an injunction should consult with a lawyer and will likely need to apply to the Supreme Court for relief.
+The court may consider the applicant’s character or conduct, and variation may be refused on this basis (''WESA'', s 63(b)). If the estate is large and the spouse or children were not mentioned in the will, or they think they were inadequately or unfairly provided for, they should consult a lawyer. LSLAP cannot assist clients with wills variation claims.
-=== 4. Restitution ===
+:'''NOTE:''' In a decision of the BC Supreme Court, ''Ward v Ward Estate'', 2006 BCSC 448 and more recently in ''Lamperstorfer v. Plett'', 2018 BCSC 89, it was held that a signed pre-nuptial agreement where both parties gave up any right or interest to the other’s estate was not determinative in a claim under the ''Wills Variation Act''.
-The law of restitution (See ''[http://canlii.ca/t/1gzjn Garland v Consumers' Gas Co.]'', 2004 SCC 25; ''[http://canlii.ca/t/2fs3h Kerr v Baranow]'', 2011 SCC 10; ''[http://canlii.ca/t/fpm5g Skibinski v Community Living British Columbia]'', 2012 BCCA 17) applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited ("[http://canlii.ca/t/1gzjn Garland v Consumers' Gas Co.", 2004 SCC 25;" [http://canlii.ca/t/2fs3h Kerr v Baranow", 2011 SCC 10]; ''[http://canlii.ca/t/fpm5g Skibinski v Community Living British Columbia'', 2012 BCCA 17]). The type of claim commonly pursued for a restitution remedy is referred to as “unjust enrichment” and is a complicated and evolving area of the law. A party planning to attain a restitution remedy should consult a lawyer, research what must be proved to be successful and which  defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practising lawyer.
+== B. Definition of Spouse in WESA ==
-=== 5. Statute ===
+The definition of spouse in section 2 of ''WESA'' reads:
-Certain statutes create a right of action that does not exist in the common law. The statute will set out what must be proved, the defences that apply, the types of damages that can be awarded, and how the claim must be brought. A person planning to bring a claim under a statutory cause of action should research the statute as well as how the courts have interpreted it by noting up the applicable provisions. See page 2: “Other Important Statutes”. Resources include CanLII.org, the courthouse library, and a practicing lawyer.
+(1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
-=== 6. Declaratory Relief ===
+(a) they were married to each other, or
+(b) they had lived with each other in a marriage-like relationship for at least 2 years.
-Declaratory relief, whereby the court defines the rights of the parties to resolve legal uncertainties, cannot be claimed at the Provincial Court of British Columbia or the CRT. This includes declarations of who is liable for an accident and then ordering the defendant (often represented by an insurer) to change its liability determination. Parties seeking declaratory relief must do so at the BC Supreme Court (''Supreme Court Civil Rules'', BC Reg 168/2009, 20-4(1)).
+(2) Two persons cease being spouses of each other for the purposes of this Act if,
+(a) in the case of a marriage, an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise, or
+(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
-== B. Types of Damages ==
+(2.1) For the purposes of this Act, spouses are not considered to have separated if, within one year after separation,
+(a) they begin to live together again and the primary purpose for doing so is to reconcile, and
+(b) they continue to live together for one or more periods, totalling at least 90 days.
-Although the Small Claims Court has the jurisdiction to award $35,000, the monetary awards in most cases are significantly less (''Small Claims Court Monetary Limit Regulation'', BC Reg 179/2005). There must be a principled basis for an award of damages and it is helpful to separate a claim into the following types of damages. Ensuring that there is a legal basis for a claim is a critical step as there are penalties for proceeding through a trial in Small Claims Court on a claim that has no reasonable basis for success (''SCR'', s 20(5)).
+(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.
-=== 1. General Damages ===
+:'''NOTE:''' See ''Gosbjorn v Hadley'' 2008 BCSC 219 for a list of factors used by the courts to determine if there is a marriage-like relationship. More recently, see the discussion in ''Connor Estate'', 2016 BCSC 1934.
-General damages, also called non-pecuniary damages, are those that are not easy to quantify and for which a judge must assess the amount of money that, in the circumstances, will compensate for the loss. A common example of general damages is “pain and suffering”. The purpose of general damages is to compensate and not to punish; a party should not expect to profit or realise a windfall through an award of general damages. A person planning to claim general damages should provide evidence of the loss and research the case law to determine how the courts have assessed damages in cases with similar losses and circumstances.   Resources include CanLII.org, the courthouse library, and a practising lawyer.
+:'''NOTE:''' In ''BH v JH'', 2015 BCSC 1551, the BC Supreme Court varied the husband’s will so that the wife, who was separated from but who has not divorced the husband, was entitled to part of the husband’s estate. This significantly deviated from what the wife would have received if they had divorced immediately before the husband’s death.
-=== 2. Special Damages ===
+== C. Exclusion of Potential Beneficiaries ==
-Special damages are generally quantifiable out-of-pocket expenses that must be specifically claimed and strictly proven (''SCR'', s 20(5)). For example, if a person has been put to expense and has receipts showing the amounts spent, these expenses would be classified as special damages. In a personal injury action, this could be medical bills, or in an action involving faulty equipment, repair bills could be classified as special damages. Each and every expense must be strictly proved with documents or other satisfactory evidence. In [https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc581/2013bcsc581.html?searchUrlHash=AAAAAQAdUmVkbCB2LiBTZWxsaW4sIDIwMTMgQkNTQyA1ODEAAAAAAQ&resultIndex=1 ''Redl v. Sellin'', 2013 BCSC 581], the Court sets out the test with respect to a claimant’s claim for special damages.  Generally speaking, claims for special damages are subject only to the standard of reasonableness.  As with claims for the cost of future care (see '[https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc982/2011bcsc982.html?searchUrlHash=AAAAAQAeSnVyYXNraSB2LiBCZWVrLCAyMDExIEJDU0MgOTgyAAAAAAE&resultIndex=1 'Juraski v. Beek'', 2011 BCSC 982; ''Milina v. Bartsch'' (1985), 49 BCLR (2d) 33 (BCSC))], when a claimed expense has been incurred in relation to treatment, evidence of medical justification for the expense is a factor in determining reasonableness.
+'''A will-maker who wishes to exclude a spouse or child should state precisely why the person is being “disinherited,” or why they are less than “adequately” provided for. LSLAP’s policy is not to draft a will where the will-maker wishes to exclude a spouse or child, or unevenly divide the assets between children. Such clients should be referred to a private lawyer unless the supervising lawyer gives approval'''.
+As per section 60 of ''WESA'', the court is not bound by the will-maker’s decision and reasons but may consider them. Therefore, the will-maker is not assured of success in their attempt to exclude or less than adequately provide for a spouse or child. For more detail, see above: '''Section VI.A: Application Under the Act'''.
-=== 3. Nominal Damages ===
+The chances of the will-maker’s will being upheld will be greater if the will-maker provides ''reasonable and rational reasons for the exclusion'''. For example, where the will-maker has already given the person substantial benefits during their lifetime, where the reason is based upon the person’s character, or on the relationship between the will-maker and the potential claimant, the court will be more likely to uphold the will-maker’s wishes.
-Nominal damages are those where a wrong has been committed but there has been no, or insignificant, damages suffered as a result of the wrong. Certain torts, such as trespass, allow claims for nominal damages however there is little reward and much to be lost. A person who has suffered no damages yet still brings a claim may not recover the costs for bringing a claim that wastes the court’s and the parties’ time and money. Note that cost awards are limited in small claims cases (''SCR'', s 20(2)) and in Civil Resolution Tribunal cases, legal feels will rarely be awarded (''Civil Resolution Tribunal Rules'', Rule 9.4(3) [CRTR]).
-=== 4. Debt ===
-Debt is a remedy for breach of contract; see [http://canlii.ca/t/5467 ''Busnex Business Exchange Ltd. v Canadian Medical Legacy Corp.'', 1999 BCCA 78]. The requirement for establishing a debt or ‘liquidated demand’ is that the sum of money is evident or able to be calculated by virtue of the contract. If the amount requires more investigation than mere calculation, the amount is not a debt but ‘damages’.
-=== 5. Liquidated Damages ===
-Some contracts provide for a genuine pre-estimate of damages in the event of a breach and allow the non-breaching party to claim for that estimate without having to prove the amount they have actually lost. This amount can be recovered as a debt. If the amount of liquidated damages is not a genuine pre-estimate of damages or is manifestly inappropriate in the circumstances, a court may decline to award them. However, the CRT cannot relieve a penalty because it is not a “court” (''Law and Equity Act'', s 24(2)).
-=== 6. Statutory Damages ===
-Statutory damages are those that arise from a breach by the defendant of an obligation found in a statute. The statute and relevant case law should be examined carefully to determine what damages, if any, may be claimed and the principles for assessing damages. Note, there are few statutory breaches that trigger statutory damages.
-=== 7. Aggravated Damages ===
-Aggravated damages provide additional compensation where the wrongdoer’s actions have caused mental distress, injury to dignity, or injury to pride ([http://canlii.ca/t/20zgp ''Campbell v Read'', 22 BCLR (2d) 214 (CA), 1987 Carswell BC 440]). Awards of aggravated damages are rare and depend heavily on the actions of the wrongdoer and the circumstances. Aggravated damages have previously been awarded in cases of aggravated assault and sexual assault ([http://canlii.ca/t/ft05t ''Thornber v Campbell'', 2012 BCSC 1449;] [http://canlii.ca/t/flvt5 ''B(A) v D(C)'', 2011 BCSC 775]). The claimant must provide actual evidence of mental distress that results from the wrongdoing of the defendant.
-A claimant who seeks aggravated damages must ask for aggravated damages in the Notice of Claim (or “Application for Dispute Resolution” in the Civil Resolution Tribunal). Aggravated damages cannot be awarded in addition to the $35,000 monetary limit.
-=== 8. Punitive Damages ===
-Punitive damages, also called “exemplary damages”, are reserved for conduct that is so abhorrent that the court must impose an additional penalty to punish the wrongdoer and discourage others from engaging in similar conduct. Punitive damages are '''rarely''' awarded. Punitive damages are not compensatory and the amount, if any, is in the complete discretion of the judge.
-A claimant who seeks punitive damages must ask for punitive damages in the Notice of Claim (or “Application for Dispute Resolution” in the Civil Resolution Tribunal). Punitive damages '''cannot''' be awarded in addition to the $35,000 monetary limit.
-== C. Limitation Periods ==
-===1. Changes Due to COVID-19===
-'''NOTE:''' Due to COVID-19, limitation dates were temporarily suspended. However, as of March 25, 2021, the suspension has been lifted, and limitations dates function as per usual. To ensure you are up to date, consult the [https://www.provincialcourt.bc.ca/COVID19 website].
-To calculate limitations dates that were affected by COVID-19, please refer below guidelines for calculating BC limitation periods from the Law Society of BC website.
-*  If the limitation period would normally have expired between March 26, 2020 and March 25, 2021, add one year to the expiry year of the limitation period. Thus, persons have the same amount of time remaining after the suspension of limitation periods as they did before.
-*  If the cause of action arose before March 26, 2020 and would normally expire after March 26, 2021, add one year to the expiry year of the limitation period.
-*  If the cause of action arose after the suspension of limitation periods but before March 25, 2021, then the limitation period
-expires March 26, 2023. In this way, a limitation period that began to run during the suspension starts to run when the suspension is lifted.
-The CRT remained open and operating normally during the COVID-19 pandemic. The automatic suspension of limitation dates did not apply to the CRT. The CRT may waive, suspend or extend mandatory time periods set out in a statute, which includes both limitation dates and the 28-day deadline to file a notice of objection to a CRT decision; however, the CRT can only exercise this discretionary power during the declaration of the state of emergency. The CRT also has discretion to extend any timeline set out in the CRT’s Rules. Requests to the CRT relating to any time periods should be filed '''as soon as possible'''. Note: Since the CRT process is easily accessible online, it may be difficult for a person to prove they need an extension. For the latest information, consult https://civilresolutionbc.ca/.
-===2. Limitation Act===
-After a certain amount of time has passed, a person loses the right to commence a claim. The amount of time that must pass before the limitation period expires depends on which act applies to the claim.
-The new ''Limitation Act'', SBC 2012, c 13 [''Limitation Act''] came into effect on June 1, 2013. A claim is governed by this Act if the claim was discovered after this date, unless the facts underlying the claim arose before the effective date and the limitation period under the old ''Limitation Act'', RSBC 1996, c 266 [''Old Limitation Act''] has expired (''Limitation Act'', SBC 2012, c 13, s 30(3-4) [''Limitation Act'']). Under the new ''Limitation Act'', the basic limitation period  that applies to most claims is 2 years after the day on which the claim is discovered (''Limitation Act'' s 6(1)).
-Discovery occurs the day on which the claimant knew or reasonably ought to have known all of the following:
-*a) That injury, loss or damage had occurred;
-*b) That the injury, loss or damage was caused by or contributed to by an act or omission;
-*c) That the act or omission was that of the person against whom the claim is or may be made;
-*d) That, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage (''Limitation Act'', s 8).
-Special rules for discovery apply in various circumstances. For example, when a person signs a document acknowledging liability for a claim,  discovery is deemed to occur on the date the acknowledgement is made unless the limitation period has already expired (''Limitation Act'', s 24(1)). Generally, there is  an ultimate limitation period of 15 years from the date the basis of the claim occurred, regardless of when discovery happens (''Limitation Act'', s 21(1)). If it has been close to 2 years since the events giving rise to your claim occurred, act quickly and refer to Appendix F: Limitation Periods or consult a lawyer.
-Under this act, the limitation period depends on the type of claim and who the other party is. A claim may consist of several causes of action and each cause of action may have a separate limitation period. For example, if a claimant waits three years, they may be unable to bring a claim in negligence but may still be able to claim for breach of contract. Litigants should review the ''Old Limitation Act'' to determine which limitation period applies.
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Difference between pages "Do You Have a Small Claim? (20:III)" and "Wills Variation Claims (16:VII)"

Revision as of 20:34, 4 August 2021

A. Application Under the Act

B. Definition of Spouse in WESA

C. Exclusion of Potential Beneficiaries

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