"Standing" Room Only - Nephew Tried to Challenge Will, But Court Finds No Legal Interest

(Re) Tomlinson Estate, 2016 BCSC 1223

The Deceased’s Will named a niece as Executor and sole beneficiary of the estate.  Through the regular path, the named niece brought an application for probate and was issued a grant.  The Deceased’s nephew, referred to as The Kamm’s in the case, then brought an action against the niece in her personal capacity, and in the capacity as executor, challenging the will claiming the Deceased lacked testamentary capacity and was unduly influenced by the niece.  The nephew sought an order that the will was invalid and damages for unjust enrichment and quantum meruit.  The niece also sought an order including one under s. 86 of the Trustee Act for advice and directions respecting management or administration of trust property and that she was entitled to use estate funds to defend the civil action. 

HELD:  Application granted in part.

As for the niece’s application – the directions sought by the niece did not relate to management or administration of the will as envisioned by s. 86 of the Trustee Act and the order was not made under s. 86.

The executor was entitled to be indemnified by the estate for out-of-pocket expenses properly and reasonably incurred in administering the estate. The niece, as executor, was assuming the position of the deceased and was attempting to fulfill the terms of the will.  The niece was obligated to defend the action and was entitled to be indemnified for expenses incurred in doing so, and the fact that she was a beneficiary of the will was irrelevant. 

As for the nephew’s action – the decision focused on Standing for advancing claims regarding a will.  The judge outlined the arguments, for and against, and concluded as he is not a beneficiary under the will, nor would he inherit upon intestacy, they are strangers to the will.  “Their only interest in the estate is that of a creditor who alleges that the deceased owed them money for services rendered.”

The nephew’s action was dismissed for having no standing to challenge the validity of the will.


21      In my view, the threshold issue which must be addressed on this application is the question of the Kamms' standing.

22      Standing is a pre-requisite to advancing claims regarding a will. Standing, in this context, means having a legal interest in the outcome of the action. Or in other words, that the legal rights of the person asserting a claim or position will be affected by the result of the proceeding.

23      In Neumann v. Chudjak Estate, 2001 BCSC 957 (B.C. Master) (chambers), the deceased left the residue of his estate to the defendants, his neighbours. The plaintiff was the stepson of the deceased. The plaintiff made claims in trust. He also sought a declaration that the deceased's will was invalid by reason of lack of capacity and undue influence. The defendants applied under then Rule 18(6) to dismiss the validity claims.

24      The court struck the challenges to the will finding the plaintiff had no standing to raise the challenge. At paras. 8 — 12 Master Horn wrote:

[8] It is agreed that the deceased has no living blood relatives. Helmut Neumann [the plaintiff], not being a blood relative of the deceased, will not inherit upon an intestacy. It is not alleged that there is an earlier will under the terms of which the plaintiff Helmut Neumann would have inherited.

[9] Accordingly, if the will were to be set aside on either of the grounds pleaded, Helmut Neumann will not benefit. The entire estate will, if he does not succeed in his trust claim, escheat to the Crown.

[10] The question now raised by the defendant's application, is whether Helmut Neumann has any standing to contest the validity of the will.

[11] A plaintiff must, to have standing in an action, be legally interested in the outcome of an issue in the action. A person is legally interested in the outcome if it will affect him by advancing or curtailing his legal rights. (See Amon v. Raphael Tuck & Sons Ltd. (1955), [1956] 1 Q.B. 357 (Eng. Q.B.)at pages 381 and 386.) As Professor Hogg has said, (Constitutional Law of Canada, 4thEdition, s. 56.2)

The question whether a person has "standing" (or locus standi) to bring legal proceedings is a question about whether the person has a sufficient stake in the outcome to invoke the judicial process. The question of standing focuses on the position of the party seeking to sue, not on the issues that the lawsuit is intended to resolve.

[12] I take it as a given that no stranger has any standing to contest the validity of a transaction such as a contract, gift or testamentary disposition of property. In relation to this will, the plaintiff is a stranger.

25      In British Columbia v. Sheaffer, 2015 BCSC 1306 (B.C. S.C.), the defendants asserted that an unsigned document dated September 20, 2011, should stand as the deceased's last will and testament rather than a properly executed will from 1974. Madam Justice Dardi denied the relief sought, stating at para. 48 that, "Mr. Thurston is not a beneficiary of the Deceased's estate. He has no standing to pursue any allegation of wrongful conduct against the PGT with respect to her office's administration of the Deceased's estate".

26      The Kamms are not beneficiaries under the will, nor would they inherit upon intestacy. They are strangers to the will. Their only interest in the estate is that of a creditor who alleges that the deceased owed them money for services rendered.

27      Counsel for Mr. Kamm submitted that although Mr. James Ryan Kamm is not a next-of-kin in the event of intestacy, he may be a beneficiary if he was named in the 1980 or 1983 wills and it turned out that the 2013 will was invalid. There is no pleading in the notice of civil claim in this regard. Furthermore, a search of the wills registry indicates that the deceased had wills drafted in 1980, 1983, and 2013; however, the wills from 1980 and 1983 are not in evidence and there is no evidence of their contents or whether their whereabouts are known. Accordingly, this speculative submission is without merit and cannot ground a persuasive argument in respect to standing.

28      I find the Kamms have no standing to challenge the validity of the will. Their pleadings in the Vancouver action, which seek "an order pronouncing against the validity of the will" on the basis of lack of capacity and/or undue influence, are struck.