Jury trials

Jury Trials

Jury Trials     Rule 12 – 6 sets out nine types of court actions that cannot be heard by a jury. A few of them are the administration of the estate of a deceased person, the dissolution of a partnership, foreclosure actions ,partition of… Read more

Lost will

SAFEGUARD YOUR ORIGINAL WILL

SAFEGUARD YOUR ORIGINAL WILL It is important to safeguard ones originally signed the will as a presumption of revocation may arise if the original is lost that may result in expensive litigation with an uncertain outcome. Historically lawyers wanted to and did keep their client’s… Read more

people and survival vector illustration on a color background

DYSFUNCTIONAL FAMILIES- HOW TO SURVIVE THEM

DYSFUNCTIONAL FAMILIES- HOW TO SURVIVE THEM I commonly used to joke with the audience of speaking engagements by asking the question- ” Are there more functional families are dysfunctional families”? I do not know the answer, but invariably it raised a nervous bout of laughter…. Read more

executors duties 2

Everything To Know About Executors

Everything to Know About Being An Executor It is perhaps trite to state that the role of the drafting notary or solicitor is simply not to fill in the blanks and record the testator’s instructions, including his or her choice of executor, but instead to… Read more

Fiduciaries

POWER OF ATTORNEY CREATES A FIDUCIARY

ATTORNEY USING A POWER OF ATTORNEY IS A FIDUCIARY As a fiduciary, an attorney for property is “ obliged to act only for the benefit of the donor,  putting his/her own interests aside”. An attorney is prohibited from using the power of their own benefit,… Read more

quantum meruit-caregiver

Quantum Meruit (Unjust Enrichment) For Care-Worker

WHAT IS QUANTUM MERUIT?   Tarantino v Galvano 2017 ONSC 3535 awarded the sum of $273,000 for caregiving services provided under the basis of a quantum meruit claim, namely a reasonable fee for services provided. A quantum meruit claim is simply one of the established… Read more

undue influence

Undue Influence- Presumption rebutted

REBUTTING THE PRESUMPTION OF UNDUE INFLUENCE   Grosseth Estate v Grosseth 2017 BCSC 2055 was a claim for resulting trust and presumption of undue influence that was dismissed by the court that found that the presumption of undue influence had been rebutted. The deceased died… Read more

Dysfuncctional 4

DYSFUNCTIONAL FAMILIES- Your Family May Actually Hate You

DOES YOUR FAMILY ACTUALLY HATE YOU OR JUST ACT LIKE IT?   I spend a good deal of time in my estate litigation practice explaining to clients the various aspects to dysfunctional families, which they invariably come from. I keep a number of my previous… Read more

wesa s 43 charging clause

Charging Clause & S.43 WESA)

Re Le Gallais Estate 2017 BCSC 1699 dealt with the charging clause in a will that provided that if the lawyer who prepared and witnessed the will should act as the executrix and attend to the legal work of the estate, then she would be… Read more

certificate of pending litigation cpl 2

Certificates of Pending Litigation (CPL) – Cancellation

Xie v Lai 2017 BCSC 2035 involved an application to cancel a certificate of pending litigation and the law re same was reviewed. The Legal Framework 31 The legal framework respecting the cancellation of CPLs was set out in Jacobs v. Yehia, 2015 BCSC 267…. Read more

DRAFTING ERRORS AND THE RULE IN SAUNDERS V. VAUTIER

DRAFTING ERRORS AND THE RULE IN SAUNDERS V. VAUTIER

Will and court order drafters should be aware of the rule in Saunders v. Vautier, (1841) 41 E.R. 482), a decision of the English courts of equity from 1841. The rule occasionally comes to my attention when a will attempts to make a bequest to… Read more

Passing of Accounts and Court Costs

Passing of Accounts and Court Costs

Re Rodgers Estate 2017 BCSC 2001 discussed who should bear the costs of a passing of accounts hearing where it was asserted that no valid complaints were raised re the accounting by the party challenging them. The court ultimately held that the estate should bear… Read more

Fraudulent Conveyances – Ponzi Schemes

Fraudulent Conveyances – Ponzi Schemes

Boale Wood Ltd v Whitmore and Samji Notary 2017 BCSC 1917 involved a Fraudulent Conveyance action brought by a trustee in bankruptcy alleging a fraudulent conveyance. A notary public was involved in a Ponzi scheme whereby $110 million was received into notary public account from… Read more

Rectification of a Document

Rectification of a Document

Re McDonald Bankruptcy 2017 BCSC 1957 deals with an attempt to rectify  the terms of a written agreement in a bankruptcy proceeding. The court refused to do so based on the following legal rationale. 103      In Snell’s Equity, (32nd ed., 2011) in the first supplement… Read more

Gifts of Cheques

Gifts of Cheques

Teixeira v Markgraf 2017 ONCA 819 dealt with the issue of inter vivos gifts of  cheques. In the Teireira case the plaintiff was given a cheque to cash as a gift several days before the death of  the bank account holder. The cheque was for… Read more