Proper Estate Expenses

Double Costs and Offers to Settle

Double costs and offers to settle were discussed in Lamperstorfer v Plett   2018 BCSC 607   Generally speaking costs of the proceeding must be awarded to the successful party unless the court otherwise orders. The word success is being equated to substantial success. As… Read more

Committeeship Order Terminates Representation Agreement and Power of Attorney

Care Giver Services-Quantum Meruit

A care  giver was awarded $273,000 for care giving services provided to her mother for five years in Tarantino v Galvanometer 2017 3535 for quantum merit (fees for services). A claim for quantum meruit is simply one of the established categories of unjust enrichment. Kerr… Read more

Trustees Breach of Duties Denied Fees

Trustees Breach of Duties Denied Fees

Zimmerman v McMichael Estate 2010 ONSC 2947 involved a passing of accounts hearing where a trustee was denied any compensation for his breach of duties as acting as trustee, denied fees, and ordered to re-pay $450,000  that he had pre-taken as compensation. The trustee was… Read more

Accessing Mental Capacity: MMSE Mental Capacity Tests

Assessing Mental Capacity: MMSE Mental Capacity Tests

MMSE mental capacity tests, also known as Mini Folstein tests are frequently used by the medical profession as a screening test in assessing mental capacity. Lawyers frequently attempt to tender the results of the MMSE results as evidence of lack of mental capacity. The courts… Read more

How to Defeat a Testamentary Gift: Beneficiary Fraud

How to Defeat a Testamentary Gift: Beneficiary Fraud

“Fraudulent beneficiaries”  has arisen in a claim that I am aware of currently before the courts, where it is alleged that the deceased was  fooled to leave his entire estate to someone who he believed was his natural son from a long-ago relationship, but the… Read more

Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity. The court found that the testator who is aged… Read more

Appraisals and Land Value

Appraisals and Land Valuation

Kumagai v Campbell 2018 BCCA 24 discussed the appraisal and valuation of First Nations Lands and held that the highest and best use analysis of the land requires the identification of “the most profitable, competitive use to which a property can be put”. It is… Read more

When The Presumption of Undue Influence Arises

When The Presumption of Undue Influence Arises

Burkett v Burkett Estate 2018 BCSC 320 held that the presumption of undue influence in gifts arises in circumstances where the relationship between the parties gives rise to the potential domination of one party by another, and once established that the potential for undue influence… Read more

Do Adopted Out Children Have Claim to Birth Family Inheritance?

Do Adopted Out Children Have Claim to Birth Family Inheritance?

In British Columbia a child who has been adopted out to another family has no claim on his or her pre-adoption family in the event of an intestacy or under the wills variation provisions of section 60 WESA. And adoption has been held by various… Read more

Interpreting the Ambiguous Will

Interpreting the Ambiguous Will

The increasing occurrence of laymen doing their own will, combined with the curative effects of sections 58 and 59 of WESA, will invariably be leading towards an increase in court applications to interpret the meaning of an ambiguous will or portion thereof. There is a… Read more

Wills Variation (S 60 WESA) and the Second Spouse

Will Variation (S 60 WESA) and the Second Spouse

In Unger v Unger Estate 2017 BCSC 1946 the court considered the legal and moral claims of a long time second spouse against the estate of her late husband who did not provide for her in his will. The plaintiff Mr. Unger aged 80 was… Read more

Ponzi Schemes

Ponzi Schemes

Two recent British Columbia decisions Kriegman v Dill 2018 BCCA 86 and Boale Wood & Co Ltd v Whitmore 2017 BCSC 1917 have dealt with various legal aspects arising out of Ponzi schemes. The growth of international commerce has given rise to cross-border fraud schemes… Read more

Wills Variation: Second Long Marriage

Wills Variation: Second Long Marriage

Unger v Unger 2017 BCSC 1946 Involves a wills variation claim brought by an 80-year-old surviving spouse against the estate of her 82-year-old deceased husband, after a second marriage that lasted 34 years. The husband’s will left the residue of his estate to his four… Read more

Unsent Text Message Valid Will In Australia

Unsent Text Message Valid Will In Australia

A court in Australia in Nichol v Nichol (2017) QSC 220 determined that a non-sent text message on a mobile phone from the deceased Mark Nichol, leaving everything to his brother and nephew was valid as his last will. The will, excluded Mark’s wife and… Read more

Dysfunctional Families: Sibling Rivalry

Dysfunctional Families: Sibling Rivalry

In estate litigation, what euphemistically might be called “sibling rivalry” often in reality borders on sibling hatred and jealousies. In some species, fortunately not humans, the firstborn is known to deliberately kill the second born. Sibling rivalry can happen in any family, but is particularly… Read more