Does the holder of a power of attorney have a duty to account to a Wills Variation Act claimant?


A decision from the BC Supreme Court released today considered the question of whether a claimant in a Wills Variation Act lawsuit has a right to demand an accounting as to pre-death dealings with the testator’s estate from the holder of a Power of Attorney. 

In Drummond v. Moore, the plaintiff was an estranged son of the testator.  The defendants were the two executors of the testator’s estate; one of them also held a Power of Attorney for the testator.  The plaintiff claimed in his WVA lawsuit an accounting from the defendants, both in their capacity as executors and as holder of the POA.  The defendants applied to strike that portion of the plaintiff’s claim.

The Court refused to strike the plaintiff’s claim.  The judge commented that although there has been no binding legal authority yet established on the question of whether in a WVA action a duty to account for monies dispersed pursuant to a POA while the testator was alive, it was not plain and obvious that the claim would fail at trial.

Given that this was just a preliminary motion to strike, this case shouldn’t be taken as the final word on a WVA claimant’s right to an accounting.  But it does suggest that there is some authority for such a claim and we expect that this is an issue that the BC Court will rule on in future.