Fiduciaries

Six Factors of a Fiduciary Relationship

Six factors must exist to create an ad hoc fiduciary duty as per the Supreme Court of Canada in Elder Advocates of Alberta Society v. Alberta, [2011] 2 S.C.R. 261, at paras. 27 and 36. The following six factors must exist: (1) the fiduciary has… Read more

WESA S 58-trial ordered

S.58 and 59 WESA Application Ordered to Trial

Estate of Palmer 2017 BCSC 1430 dealt with  an application to cure defects in a will under sections 58 and 59 of WESA, but was ordered to trial rather than having been dealt with summarily by affidavits. Ms. Palmer executed a short will on August… Read more

gift or loan

Parental Monies to Children- Loan or Gift?

Weinhaupt v Paracy 2017 BCSC 1662 deals with an increasing phenomena- the advancement of funds by parents to children in order to assist in the financing of the purchase of a home, and whether the advancement of funds was a gift or a loan when… Read more

WESA S 58- unwitnessed will valid

Unwitnessed Will Valid- S.58 WESA

Re Riguidel Estate 2017 BCSC 1667 found a signed but unwitnessed will to be valid by invoking the curative provisions of Section 58 WESA. The Facts: The people present when the deceased signed the handwritten and typed documents were the deceased, Ms. Leonard and Mr…. Read more

partition refused

Partition and Sale Refused Due to Serious Hardship

Lou v Vesterinen 2017 BCSC 1566 refused an application for partition and sale by  trustee in bankruptcy due to “serious hardship” of the two young children living in the home, one of whom was severely disabled. It is a good example of where the court… Read more

Saunders v Vautier

Termination of Trusts- Saunders v Vautier

Ward v Roberts 2017 BCSC 1768 allowed the termination of a trust on the basis that there was no ” gift over” and thus it violated the rule in Saunders v Vautier. The deceased executed a will in 2009 that provided that placed equal share… Read more

Section 58-59 WESA Rectification Application Referred to Trial

Section 58-59 WESA Rectification Application Referred to Trial

Estate of Palmer 2017 BCSC 1430 dealt with an application by affidavits pursuant to Sections 58 and 59 WESA to cure deficiencies in a will left by a deceased who hand wrote certain changes to a typed and properly witnessed prior will. The  Judge referred… Read more

Jerry Lewis and Wills Variation

Jerry Lewis and Wills Variation

In British Columbia, Jerry Lewis’s six disinherited children would have a wills variation claim under Section 60 of WESA. The news today reported: When comedian Jerry Lewis died from heart failure in August at the age of 91, as it turns out, he left the… Read more

Is a Will Valid By A Grant of Probate?

Is a Will Valid By A Grant of Probate?

Seepa v Seepa 2017 ONSC 5368 revisited the question of whether a will is recognized as valid by a grant of probate. The Court followed Neuberger v. York, 2016 ONCA 191: a. The court’s jurisdiction in probate is inquisitorial because the court’s decision does more… Read more

Executor Must Treat All Beneficiaries In Good Faith

Executor Must Treat All Beneficiaries In Good Faith

An executor is in a fiduciary relationship and must treat all beneficiaries fairly and in good faith. Brighter v. Brighter Estate (1998), 1998 CarswellOnt 3113 (Ont. Gen.Div.): The executor has no right to hold any portion of the distributable assets hostage in order to extort… Read more

Highest Court Encourages Alternatives to Trial

Highest Court Encourages Alternatives to Trial

The Supreme Court of Canada released its decision in Hryniak v. Mauldin (2014 S.C.C. 7, [2014] 1 S.C.R. 87) and encouraged alternative solutions to a trial. In her decision, Karakatsanis, J. called for “a shift in culture” (para. 20). She recognized that the adjudication of… Read more

Executors/Trustees Must Care For Estate Assets

Executors/Trustees Must Care For Estate Assets

The law is clear that a personal representative (executors, trustees, and administrators)  has a duty to care for the assets of the estate: Stanger v. Royal Trust Co., [1947] 1 W.W.R. 538, [1947] 2 D.L.R. 534 (Sask. C.A.). Personal representatives undertake their duties in furtherance… Read more

Special Costs in S 58 WESA Application | Disinherited

Special Costs In S 58 WESA Application

Re: Hadley Estate 2017 BCCA 311 the BC Appeal court upheld the principle of costs in estate litigation where the litigation is necessary due to the conduct of the deceased, then each party will normally be entitled to have their legal fees paid for from… Read more

Adding, Substituting and Removing Parties to an Action

Adding, Substituting and Removing Parties to an Action

Stewart v Stewart 2017 BCSC 1532 also dealt with Rule 6-2 (7) that deals with adding, substituting or removing parties to a court action. Rule 6-2(7)(a) provides: (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules… Read more

Reasonable Cause of Action Must Be Claimed

Reasonable Cause of Action Must Be Claimed

Stewart v Stewart 2017 BCSC 1532 discussed the law relating to the failure to disclose a reasonable cause of action in the notice of claim, which if upheld by the court  can lead to the dismissal of the claim. 52 The legal framework is well… Read more