If real estate is located outside of British Columbia, there are limited rights of a litigant to use a British Columbia lawsuit to pursue the asset
With a global economy, individuals often have property in many jurisdictions, not just British Columbia. Also, the testator may be living in different jurisdictions depending on the time of year.
As a rule of thumb, probate ought to occur in the jurisdiction most closely connected with the testator. However, sometimes starting probate or litigation in British Columbia has a tactical advantage ranging from lower probate fees than other jurisdictions to favorable wills variation laws.
The problem is that if real estate is located outside of British Columbia, there are limited rights of a litigant to use a British Columbia lawsuit to pursue the asset. In the case of Sharma v Sharma Estate 2016 BCSC 1397, the difficulty of overcoming a conflict of laws issue is illustrated where a plaintiff in a will variation claim sought interest in real estate that was located in another jurisdiction. In that case, real estate located in Fiji was part of the bequest left to the defendant beneficiary and was in the process of being sold after probate was granted. The general position is that a Court in British Columbia will not have jurisdiction over foreign real estate.
Overall, if you have a testator living in more than one jurisdiction, including British Columbia, the key is that while British Columbia does have its advantages because of the will’s variation provisions of WESA, you will have a difficult time pursuing some assets that are outside the jurisdiction of British Columbia. Indeed, you may be forced to start similar lawsuits in several jurisdictions where the testator holds assets.
Assets Subject to a Wills Variation Claim
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