Limitation Period Not a Sword

October 2, 2008 Hull & Hull LLP Litigation, Support After Death Tags: , , , , 0 Comments

 A recent decision from British Columbia, Desbiens v. Bernacki, 2008 BCSC 696 is a good reminder that a limitation period is a shield, not a sword. 

In Desbiens, the deceased had four children from a first marriage.  After his first wife left him, he placed three of his children in foster care; one child was adopted.  The deceased never provided financially for his children.  He eventually married his second wife.  His Will left his entire estate to his second wife.  His executrix later learned of the existence of the four children and found addresses for them among the deceased’s belongings.  She mailed notices in the form prescribed by British Columbia’s Estate Administration Act, along with copies of the Will.  None of the children received the notices, as the addresses were outdated.  The executrix did not apply to the court for directions and apparently took no active steps to verify the addresses or the current whereabouts of the children.  Three years after the deceased’s death, three of the children commenced an pplication under British Columbia’s Wills Variation Act.  The executrix and second wife sought to have their application dismissed, on the basis that the limitation period had expired.

The Court ultimately concluded that the executrix and the second wife were estopped from invoking the limitation period defence.  The Court held that the executrix did not meet the statutory degree of diligence required when giving notice and failed to "deliver" the notices as required by the Estate Administration Act.  Simply mailing the notices to unconfirmed addresses was insufficient, and the executrix should have made reasonable inquiries into the current whereabouts of the children.

Have a great day!

Bianca La Neve


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