Williams v. Williams Estate, (1991) 2 B.C.A.C. 54 (CA)

JudgeLambert, Wallace and Hinds, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateMarch 28, 1991
JurisdictionBritish Columbia
Citations(1991), 2 B.C.A.C. 54 (CA)

Williams v. Williams Estate (1991), 2 B.C.A.C. 54 (CA);

    5 W.A.C. 54

MLB headnote and full text

Ronald Craig Williams, by his guardian ad litem, the Public Trustee of the Province of British Columbia (plaintiff/respondent) v. Suzanne I. Bugeaud and Paul L. Parsons, executors of the Estate of Elsie Emily Mae Williams, Deceased (defendants/appellants) and Milton Terrill Webb (defendant)

(No. CA012203)

Indexed As: Williams v. Williams Estate

British Columbia Court of Appeal

Lambert, Wallace and Hinds, JJ.A.

July 10, 1991.

Summary:

A husband and wife had a mentally handicapped child (Ronald) in 1958. Ronald remained in a mental institution in the United States since birth. The husband and wife divorced in 1981 and the wife moved to British Columbia. The wife died in 1983, leaving nothing to her son in her will. The Public Trustee, without any request to do so, commenced proceedings under the Wills Variation Act as Ronald's guardian ad litem. The executors of the wife's estate (i.e. Ronald's mother's estate) applied for dismissal of the Public Trustee's action.

The motions judge held that the Public Trustee lacked authority to issue a writ as guardian ad litem of Ronald, a disabled person residing outside the province. The judge held, however, that the issuance of the writ was not a nullity but was, instead, a curable irregularity. The executors appealed.

The British Columbia Court of Appeal dismissed the appeal. The court held however, contrary to the decision of the motions judge, that the Public Trustee had authority to act as guardian ad litem and commence the action on Ronald's behalf. The court ordered that the action proceed to trial.

Family Law - Topic 6753

Dependents' relief legislation - Practice - Time for application - Wills Variation Act, s. 10(1) - Section 10(1)(a) provided that an action under the Act had to be commenced within six months from the date of the issue of probate of the will - Section 10(1)(b) provided that a copy of the writ of summons had to be served on the executor - An executor argued that the writ must not only be issued within six months from the date of issuance of letters probate, but it must also be served within the time constraint - The British Columbia Court of Appeal rejected the executor's argument - See paragraphs 34 to 41.

Guardian and Ward - Topic 252

Appointment and qualifications of guardian - Of incompetent persons - Guardian ad litem - The British Columbia Court of Appeal stated that "while it is desirable that a guardian ad litem be a relation, connection or friend of the family of the person under disability for whom he or she purports to act, there is no absolute requirement of prior relationship at common law. It is required, however, that the guardian ad litem have no interest adverse to that of the person under disability or be connected with a party opposite in interest to the person under disability ..." - See paragraph 31.

Guardian and Ward - Topic 252

Appointment and qualifications of guardian - Of incompetent persons - Guardian ad litem - [See Guardian and Ward - Topic 877 ].

Guardian and Ward - Topic 877

Public trustee or guardian - Powers - To commence legal action - A husband and wife gave birth to a mentally handicapped child (Ronald) - Ronald was in a United States mental institution since his birth in 1958 - The couple divorced and the wife moved to British Columbia where she died in 1983, leaving Ronald nothing in her will - The Public Trustee, without a request to do so, became Ronald's guardian ad litem and commenced an action under the Wills Variation Act on Ronald's behalf - The British Columbia Court of Appeal held that the Public Trustee was authorized to act as guardian ad litem for a nonresident without being appointed by the court and had authority to commence the action without court approval - See paragraphs 1 to 33.

Cases Noticed:

Beadle v. Beadle (1984), 56 B.C.L.R. 386 (C.A.), refd to. [paras. 29, 30].

Nalder v. Hawkins (1833), 2 M. & K. 243, refd to. [para. 31].

In Re Burgess (1883), 25 Ch. 243 (C.A.), refd to. [para. 31].

Re Mary Jane Brown Estate (1956), 19 W.W.R.(N.S.) 616, refd to. [paras. 35-37].

Statutes Noticed:

Estate Administration Act, R.S.B.C. 1979, c. 114, sect. 135 [paras. 5, 6, 18].

Interpretation Act, R.S.B.C. 1979, c. 206, sect. 1 [para. 20]; sect. 29 [para. 23].

Public Trustee Act, R.S.B.C. 1979, c. 348, sect. 2(1), sect. 3(1) [para. 17]; sect. 4 [paras. 18, 19, 24, 25, 33]; sect. 5, sect. 6 [para. 18].

Rules of Court (B.C.), Supreme Court Rules, rule 6 [paras. 20, 21, 30]; rule 6(5) [paras. 18, 21-33]; rule 6(6) [para. 29]; rule 6(9) [para. 28]; rule 6(10) [paras. 28, 29, 32]; rule 6(13) [para. 28]; rule 9 [para. 39]; rule 18A [para. 1].

Supreme Court Act, R.S.B.C. 1979, c. 397, sect. 62 [para. 20].

Testator's Family Maintenance Act, R.S.B.C. 1948, c. 336, sect. 11 [paras. 35-38].

Wills Variation Act, R.S.B.C. 1979, c. 435, generally [para. 1]; sect. 10(1)(a) [paras. 7, 14, 34-41]; sect. 11 [para. 40].

Counsel:

S.B. Margolis and J. McClean, for the appellants;

   J. Arvay, Q.C., for the Public Trustee.

This appeal was heard on March 28, 1991, in Vancouver, B.C., before Lambert, Wallace and Hinds, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered by Hinds, J.A., on July 10, 1991.

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1 practice notes
  • Richard v. British Columbia, 2003 BCSC 976
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • 17 Abril 2003
    ...or competing actions (incl. appointment of lead counsel) - See paragraphs 1 to 69. Cases Noticed: Williams v. Williams Estate (1991), 2 B.C.A.C. 54; 5 W.A.C. 54; 57 B.C.L.R.(2d) 223 (C.A.), refd to. [para. British Columbia (Public Trustee) v. Williams Estate - see Williams v. Williams Estat......
1 cases
  • Richard v. British Columbia, 2003 BCSC 976
    • Canada
    • British Columbia Supreme Court of British Columbia (Canada)
    • 17 Abril 2003
    ...or competing actions (incl. appointment of lead counsel) - See paragraphs 1 to 69. Cases Noticed: Williams v. Williams Estate (1991), 2 B.C.A.C. 54; 5 W.A.C. 54; 57 B.C.L.R.(2d) 223 (C.A.), refd to. [para. British Columbia (Public Trustee) v. Williams Estate - see Williams v. Williams Estat......

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