Prejudging Wills Variation Claims


Justice Douglas refused to prejudge a wills variation claim on an interim application. In Rivers v. DeVouge, 2022 BCSC 2267, John Richter successfully defended an application brought by the plaintiff wife. The deceased husband prepared a new will and created an alter ego trust shortly before he died. He transferred many of the assets into the alter ego trust which provided the wife a $300,000 payment. Upon his death, the wife brought a claim to challenge his will and trust on the basis of capacity, raised a section 151 WESA issue to recover assets for the estate, and brought a wills variation claim.

The plaintiff brought an application to receive the $300,000 from the alter ego trust. The alter ego trust, corporation and estate retained Richter Trial Lawyers which argued that if she were successful in her claim, there would be no alter ego trust and therefore the $300,000 could not be paid out of a nonexistent entity. We further argued that the court must follow the orderly assessment of the legal issues, first the validity of the trust and will, second determining what is in the estate, and only third a wills variation claim.


Justice Douglas agreed with these arguments relying upon Schell Estate, 2019 BCSC 2168 that it is generally improper to include a wills variation claim with an action for proof of the will in solemn form. A valid will is a precedent to a wills variation claim. Justice Douglas also agreed with the second and third arguments in finding at para. 52

[52] By challenging the validity of the Trust, the plaintiff has created an impediment to the interim distribution she seeks, pending a determination at trial of the validity of the Trust. Plaintiff’s counsel suggests that a court order authorizing the trustees to pay funds out of the Trust would insulate them from any breach of trust claim. However, in my view, such an order effectively requires me to pre-determine the Trust’s validity.


The plaintiff’s application was dismissed with costs in the cause. John Richter and Richter Trial Lawyers specialize in estate litigation and in particular wills variation claims. If you are searching for an experienced estate litigation or wills variation lawyer, contact Richter Trial Lawyers for a free consultation.

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