Lindsay v. Jones et al., (1991) 5 B.C.A.C. 112 (CA)

• Judge: Lambert, Cumming and Hollinrake, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 24, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 5 B.C.A.C. 112 (CA)

Lindsay v. Jones (1991), 5 B.C.A.C. 112 (CA);

    11 W.A.C. 112

MLB headnote and full text

Thomas James Lindsay (plaintiff/appellant) v. Evy Jones, Gordon Bowman as partial guardian of the person of Evy Jones and the said Evy Jones, Seth Verner Swanstrom, Public Trustee of the Province of Alberta as trustee for Seth Verner Swanstrom, Thomas James Lindsay, executor of the estate of Thomas Lindsay also known as T. Lindsay deceased (defendants/respondents)

(No. CA011509)

Indexed As: Lindsay v. Jones et al.

British Columbia Court of Appeal

Lambert, Cumming and Hollinrake, JJ.A.

June 24, 1991.

Summary:

Lindsay applied under the Wills Variation Act for an order varying his father's will. The application was dismissed. Lindsay appealed.

The British Columbia Court of Appeal allowed the appeal.

Family Law - Topic 6638

Dependents' relief legislation - Persons entitled to relief - Adult children - A father died leaving a car to his son, with the residue of his estate to be divided equally between the brothers and sisters of his second wife and his son - Only one sister survived the father - The son, in his forties, survived also, but was unemployed, had no assets and no prospect of work - The son applied to vary the will under the Wills Variation Act - The British Columbia Court of Appeal allowed the application, holding that the destitute circumstances of the son at the time of his father's death indicated that adequate provision was not made for the son in the will - The court ordered that ⅔ of the residue go to the son.

Family Law - Topic 6673

Dependents' relief legislation - Entitlement - Where adequate provision for dependent not made in will - [See Family Law - Topic 6638 ].

Cases Noticed:

Price v. Lypchuk Estate (1987), 11 B.C.L.R.(2d) 371, refd to. [para. 9].

Statutes Noticed:

Wills Variation Act, R.S.B.C. 1979, c. 435, sect. 2(1) [para. 8].

Counsel:

Brian R. Marshall, for the appellant;

   S.K. Gudmundseth, for the respondent.

This appeal was heard before Lambert, Cumming and Hollinrake, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered orally on June 24, 1991, including the following opinions:

Lambert, J.A. - see paragraphs 1 to 12, 15, 16;

Cumming, J.A. - see paragraph 13;

Hollinrake, J.A. - see paragraph 14.