Non Binding ( Precatory) Words In Will Not a Trust

Non Binding ( Precatory)  words in a will were found not to create a trust that was legally binding on the trustee, but instead that the words were non binding ( precatory) and thus only morally binding an thus an outright bequest.   Killam v… Read more

Striking Out a Court Pleading

A court pleading may be struck out by the Court pursuant to Rule 9-5 ( 1) which states: 1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of pleading, petition or other document… Read more

Mental Incompetency and the Patient’s Property Act

Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly   mentally incompetent patient.   A Trust company had earlier been appointed to manage the elderly woman’s  financial affairs pursuant to a… Read more

Obituaries

Obituaries are news article that report the recent death of a person that typically accounts for the person’s life, family members, glowing tributes , noteworthy achievements  and   information about an upcoming funeral service. It could be said that the main purpose of an  obituary is  to honour and… Read more

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions… Read more

Relationship Between Parent and Child Is Fiduciary

A (LS) v A. ( WH) Estate 2014 BCSC  1910  ( Antrobus v Antrobus) discusses that the relationship of parent and child is fiduciary in nature, and that parents have an obligation to care for, protect and rear their children . This line of authority was… Read more

Court Costs Awarded Against Lawyer Personally

The Supreme Court of Canada dismissed an appeal of the Ontario Court of Appeal upholding a a substantial award of court costs against a  lawyer personally for his handling of a case found to be vexatious and an abuse of process.  The client was also jointly… Read more

Get Your Will Done Joke

This is especially for Seniors but also for those who have not prepared their Will!!     Mr. Smith is on his deathbed and knows the end is near. The nurse, his wife, daughter and 2 sons, are with him. He asks that 2 witnesses… Read more

Misfeasance of Public Officials

It occasionally occurs in estate litigation that a party has complaints about the misfeasance of  public officials, (usually  against the Public Guardian and Trustee), as a result of perceived deliberate  unlawful actions on the part of the public official against the complainant . The tort… Read more

Joint Tenancy and the Right of Survivorship

McKendry v McKendry 2017 BCCA 48 sets out a good analysis of what a joint tenancy is and the right of survivorship associated with it.   The real property in question was the mother of four children’s home in Vancouver. In 2008, she transferred legal… Read more

“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively:   Does a child who is adopted by… Read more

Amending Court Pleadings

Russell Estate v Larson 2017 BCSC 113 contains a good summary of the law relating to amending court pleadings.   Pleadings are very important in litigation so as to give a concise definition of the issues to be tried and to allow the opposing party… Read more

Executor Can Waive Solicitor Client Privilege

Haas Estate v Jane Doe 2017 BCSC 12 confirmed that an executor( personal representative ) of an estate can waive any solicitor client privilege that existed prior to the deceased’s passing. Mr. Haas died on February 15, 2016, leaving a will naming his only child,… Read more

Executor Added After Expiration of Wills Variation Limitation

Wills Variation Limitation. Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred. In the 1987 decision Cowan v Cowan 17 BCLR ( 2d)… Read more

Damage Assessments on Appeal

The appeal case of Gadhri v 0760815 BC Ltd 2017 BCCA 31 confirmed long standing law that an appeal court will not vary a trial judge’s award of damages assessments unless the following occurs: “An appellate court will not interfere with a trial judge’s assessment… Read more