Can a defendant in an action to prove a will in solemn form counterclaim under the Wills Variation Act?

While the defendant asserts that the validity of the will should be determined at the trial which will also determine her claim under the Wills Variation Act, I consider that the evidence which would be relevant in a wills variation action would be different from the evidence relevant to proving a will. Similarly, I consider that the issues which I must decide in determining whether the will has been proven in solemn form are, despite some limited cross over, different from the issues involved in a wills variation action. A similar consideration was undertaken by Robinson L.J.S.C. in Clark v. Nash, [1986] B.C.J. No. 1655 (S.C.), where he held that the defendant in an action to prove a will in solemn form, could not counterclaim under the Wills Variation Act, since the latter is not a matter “relating to the granting of probate.”