Vancouver Family Law Estate Disputes require a lawyer who knows both how to win family law cases and how to successfully resolve estate disputes. MacLean Law handles family law matters and estate disputes involving significant assets. In today’s blog Nick Davies writes about the overlap between a family law case and an estate dispute when one of the spouses died before the family law issues were resolved.
Vancouver Family Law Estate Disputes 1 877 602 9900.
The recent case of Weaver Estate v. Weaver, 2022 BCCA 79 dealt with an Appeal by the separated surviving husband on whether the administrator of his former wife’s estate could sue for her equal share of family property after she had died. Vancouver Family Law Estate Disputes are tricky so hiring a lawyer that knows the rules is critical in obtaining a successful resolution of these emotionally charged cases.
In Weaver Estate, the husband sought sought to reverse an order dismissing his application to strike a notice of family claim filed by the administrator of the estate of his former spouse. The husband and his former spouse separated years before the wife’s death, which at law triggers an entitlement by each spouse to an undivided half interest in all family property and equal responsibility for family debt. The wife died before starting court proceedings to obtain her share. Her estate filed a notice of family claim after her death. The husband argued the administrator had no standing to do and her claim should have been dismissed because only a living spouse can apply for a division of family property and family debt and his former spouse’s interest abated with her death.
Claims After Death Can Be Made Under FLA and WESA 1 877 602 9900.
However the Court of Appeal dismissed the appeal finding that a spouse can sue after death through their estate representative. The Court decided that the relevant statutory provisions, read as a whole, make it clear that in British Columbia the administrator of an estate of a separated and deceased spouse may commence a claim for the division of family property and family debt after the spouse’s death. The property interest underlying the cause of action crystallized on separation and did not abate on death.
Here is a snapshot of the key findings by BC’s highest court:
 The FLA and WESA are remedial statutes and must be liberally construed: Interpretation Act, R.S.B.C. 1996, c. 238, s. 8; Matteucci at para. 42.
 The FLA seeks to “expand protection for different types of spouses”: Li at para. 70. (Note MacLean Law won this case!) It is also intended to make family property law “simpler, clearer, easier to apply and easier to understand for the people who are subject to it”: Ministry of Justice of British Columbia, The Family Law Act explained, Part 5 – Property; V.J.F. v. S.K.W., 2016 BCCA 186 at paras. 5–6.
 The policy rationale underlying s. 150 of WESA is that “valid claims should not be barred by the death of the deceased”
 None of ss. 3, 94 or 198 of the FLA specify that only a living spouse may bring a claim for the division of family property and family debt. Had that been the Legislature’s intention, one would expect to see explicit language to that effect, given the obvious implications for the successors of a separated and deceased spouse.
 Mr. Weaver’s position is contrary to Dowell Estate, which is binding on us. Under s. 81 of the FLA, there is only one triggering event—separation. The statute does not require that a spouse start a court proceeding before the undivided half interest in family property takes effect. It is only a final valuation of the interest that awaits determination under Part 5: Dowell Estate at para. 31. The s. 81 interest “crystallizes” on separation: Howland at paras. 19–20, 23, 27.
 Section 150 of WESA is a provision of general application and broadly worded. It has been characterized as similar to England’s Law Reform (Miscellaneous Provisions) Act, 1934 (UK), 24 & 25, Geo. V, c. 41, s. 1(1), which “allows for all causes of actions to survive for the benefit of a deceased’s estate, except as specifically excluded”: Grant v. Winnipeg Regional Health Authority et al., 2015 MBCA 44 at para. 51 (emphasis added).
 In my view, that result is inconsistent with the broad-scoped wording of the FLA and WESA. It is inconsistent with the fact that neither the FLA nor s. 150 of WESA stipulate that a Part 5 claim cannot be commenced by the personal representative of a deceased spouse. It is inconsistent with the general rule, at common law, that causes of action predicated on property interests survive the death of the plaintiff. The interpretation advanced by Mr. Weaver furthermore does not accord with an important objective underlying the FLA, namely, a move away from reliance on the common law for the resolution of family property claims and the legal uncertainty created by discretion. And, importantly, it is inconsistent with Dowell Estate’srecognition that a statutory vesting of a property interest does not abate on death.
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