We are often consulted when someone is residing in property owned by a deceased person, but is not the beneficiary of that property under the deceased person’s will.  Frequently, this will be a family member (often a child, living at their parent’s property).  The executor wants them to leave the property, and they refuse to do so.  They may make a claim to the property or an interest in the property, or they may claim a life interest entitling them to remain in the property.  They may challenge the will or seek to vary the will such that they will receive an interest in the property.  If someone makes such a claim, can they be forced to vacate the property before that claim is determined?

In Chen v. Zaleschuk 2023 BCSC 1976, the petitioner was the spouse of the deceased.  The respondent was the son of the deceased.  The respondent lived in the rental suite on the bottom floor of the petitioner and the deceased’s home (which was registered in the name of the deceased).  The deceased’s will provided that the petitioner becomes the sole owner of the property.  The petitioner sought the removal of the respondent from the property, and the respondent refused to leave.

First, the respondent challenged the validity of the deceased’s will.  He argued lack of testamentary capacity, and failure of the will to carry out the deceased’s intentions because of an omission, or misunderstanding of or failure to carry out the deceased’s instructions.  The respondent argued that the will should be interpreted in a manner that provided him with the ability to reside in the property for his lifetime (a “life interest”).

The Court held that the respondent did not have a life estate in the property.

Next, the respondent filed a notice of civil claim seeking (1) a variation of the deceased’s will in his favor, and (2) a declaration that the respondent holds an interest in the property in constructive trust for his benefit.  The respondent filed a response, and this action was ongoing.

In the meantime, the petitioner gave notice to vacate the property to the respondent.  The respondent filed a notice of dispute with the Residential Tenancy Branch.  The Residential Tenancy Branch concluded that it did not have jurisdiction because the matter was linked to a Supreme Court action.

The petitioner took the position that in light of the court’s determination that the respondent did not have a life interest in the earlier proceeding, the respondent had no legal right to live in the property and he was a trespasser.

The respondent argued that the new action seeks to vary the will to give effect to an agreement that he had with the deceased and provide for the alleged life estate.  In the meantime, he alleged that he should be entitled to stay at the property.  He argued that he was not trespassing given his claim to a life estate, and he also argued that he improved and contributed to the property and this entitled him to occupy the suite without paying rent until the property is sold.

The Court held that the claims had not been proven.  At this stage, they were mere allegations, and such claims do not entitle the respondent to remain in the property.  Any interest he may establish in the property was protected by the certificate of pending litigation filed in the civil claim.  The respondent had previously be found not to have a life estate in the property.  The Court also did accept the respondent’s claims that he had not other residence, and that leaving the property would cause hardship and disruption.

The Court concluded that the respondent has no right to possession of the property, and that the petitioner as executor was entitled to deal with estate assets: “simply commencing the Civil Claim does not establish such a right.”  The Court ordered that the respondent vacate the property within 30 days.

As a result, it cannot be assumed that if a tenant residing in estate property commences an action against the estate which includes a claim to that property, they get to stay in that property until the claim is determined.

The petitioner also sought an order that the respondent pay market rent for the property.  The Court adjourned this issue to be determined after the claims advanced in the respondent’s civil claim are resolved or dismissed.