BC Supreme Court grants relief to woman whose father’s will left full estate to live-in caregiver

In a case where a testator left nothing to his daughter in his will, the British Columbia Supreme Court granted her application for leave to conduct an action and maintain it in her own name and on the estate’s behalf. 

The testator’s will, made on June 4, 2020, named two executors: his live-in caregiver or companion and his solicitor. These executors were the defendants in Kirkwood v Gubisch, 2026 BCSC 1080. The will left his entire estate to the caregiver. 

Before his death, the testator also transferred property and assets in the names of himself and the caregiver as joint tenants. The testator passed away on Oct. 31, 2023. 

The deceased’s daughter was the plaintiff in this case. Under s. 151(1) of BC’s Wills, Estates, and Succession Act, 2009 (WESA), she applied for leave to seek orders, in her own name and on the estate’s behalf, providing that certain real and personal property and bank or investment accounts were estate property. 

The daughter relied on the presumption of a resulting trust arising in the case of gratuitous transfers where no presumption of advancement applied. In her notice of civil claim (NOCC), she also sought: 

• a declaration that the will was invalid on the grounds of undue influence, lack of testamentary capacity, or both 
• alternatively, a declaration that the will inadequately provided for her proper maintenance and support, and an order under s. 60 of WESA to make such provision 
• a certificate of pending litigation over the real property 

Opposing the application on multiple grounds, the caregiver applied to strike portions of the NOCC, including paragraphs stating that: 

• The will failed to provide sufficiently for the daughter’s proper maintenance and support 
• The will gave no reason for disinheriting the daughter 

Plaintiff’s application granted

The Supreme Court of British Columbia granted the daughter’s application upon considering the criteria in s. 151 of WESA and the strength of her proposed case on the estate’s behalf. 

First, the court ruled that the presumption of resulting trust raised an arguable case to seek leave under s. 151. 

Second, the court held that the daughter met the requirement of serving the personal representative and any other specified persons, including the person the caregiver identified as the executor, under s. 151(3)(ii)(a) and (b) of WESA. 

Third, under ss. 151(3)(a)(iii) and (b) of WESA, the court determined that the daughter acted in good faith in initiating this proceeding, which was necessary and expedient for her interests. 

The court explained that the daughter sought to recover property or to enforce a right, duty, or obligation owed to the deceased that the personal representative could recover or enforce under s. 151(1)(a) of WESA. 

The court noted that the caregiver, as personal representative, had yet to bring an action against herself on the estate’s behalf to determine the estate’s contents two and a half years after the testator’s death. 

Fourth, the court found that the daughter made reasonable efforts – including through her Jan. 7, 2025 letter to both executors and her NOCC filed on Feb. 14, 2025 – to cause the personal representatives to commence the proceeding under s. 151(3)(a)(i) of WESA. 

Lastly, upon considering the letter’s content and context, the court rejected the caregiver’s argument that the letter was inadmissible based on settlement privilege. 

Strike application denied

The BC Supreme Court dismissed the caregiver’s application to strike and awarded costs against her in any event of the cause. 

First, the court refused to strike the s. 151 pleadings and relief from the NOCC on the basis that the daughter should have proceeded by petition. 

The court ruled that the daughter appropriately brought the proceeding via an NOCC in her capacity as a specified person, and then sought leave to maintain that proceeding on the estate’s behalf before taking any other steps in the litigation. 

Second, the court found it inappropriate to strike the NOCC’s wills variation pleadings and relief. The court stated that the pleadings would only require reinstatement upon proof of the will in solemn form. The court pointed out that the executors had yet to make efforts to prove the will. 

Lastly, the court declined to issue a certificate of pending litigation over the real property, given the relief granted in this case.