Pleading Particulars of Undue Influence

Harder v Harder Estate 2017 BCSC 425 discusses the necessity of pleading sufficient particulars of allegations of undue influence  so that the defendant can meet the claim and not be taken by surprise at trial.   Particulars of Undue Influence   [15]        SCCR 3-7 (18)… Read more

Change of Venue of Trial

      Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city.   The defendants in Harder sought an order transferring the proceedings  from Victoria to… Read more

Conflict of Law- “Ordinarily Resident”

  Cresswell v Cresswell Estate 2017 BCSC 178 dealt with a conflict of law situation and held that the jurisdiction of the BC court should be denied for a wills variation action and held that it should properly be filed under Alberta court jurisdiction as… Read more

Passing Over an Executor

Passing over an executor utilizes essentially the same legal criteria as removing an executor except it occurs before the named executor starts to act in the representative capacity.   Re Thommasson Estate 2011 BCSC 481 removed a named  executor who was not a beneficiary but his… Read more

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Wolverton Securities Ltd v Schemel 2009 BCSC 1048 discusses the concepts of res judicata, cause of action estoppel and merger in judgement and states that the concepts are often used interchangeably in various judgments.   The concepts essentially bar a litigant from suing a second… Read more

Civil Fraud

The tort of civil fraud ( as opposed to criminal fraud)  was reviewed by the Supreme Court of Canada in Bruno Appliance and Furniture Inc. v Hyrniak 2014 SCC 8  and concluded there are four elements .   18      The classic statement of the elements… Read more

Prohibiting Lawyers From Acting

  Rubin Estate v Rubin Estate 2017 ONSC 1404  dealt with an application to prohibit a  lawyer from acting for her siblings and mother who were being sued by one daughter.   The lawyer in question had previously given US tax advise on a ” no… Read more

Pleading the Tort of Conspiracy

It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court  pleading of the tort of conspiracy.   For example, I recently had a situation where the executor attempted to sell the… Read more

“Good Conscience” Constructive Trusts

The Ontario Court of Appeal in Moore v Sweet 2017 ONCA 182 discussed the concept of ” good conscience” trusts that had been pronounced by the Supreme Court of Canada in the decision Soulos v. Korkontzillas 1997 2 SCR 217 in rejecting the claim of… Read more

Unjust Enrichment in Common Law Relationships

The Ontario Court of Appeal in Reiter v Hollub 2017 ONCA 186 reviewed the law of unjust enrichment and dismissed a 6 year common law spouse’s claim that she should share in the increase in the property value of the matrimonial home owned by her… Read more

Trusts – The Certainty of Intention

In order to create a valid trust the  “three certainties” must be present- the certainty of the intention to  impose enforceable trust obligations on the trustee, the certainty of the subject matter to be included in the trust and the certainty of objects, a clearly… Read more

Qualified Disability Trusts in B.C.

QUALIFIED DISABILITY TRUST IN BC Reprinted with the kind permission of the following presenters who are experts in Disability law. PRESENTED BY: KEN M. KRAMER, Q.C., PRINCIPAL & SENIOR ASSOCIATE COUNSEL KMK LAW CORPORATION & HALLDOR K. BJARNASON, BARRISTER & SOLICITOR ACCESS LAW GROUP TRENDS… Read more

The Principles of Interpreting Contracts

Dusanjh v Wright Estate 2017 BCSC 340 sets out the law relating to interpreting contracts when there is an ambiguity as to it’s meaning.   The children of the deceased brought a petition that argued the deceased had established a trust in their favour and the… Read more

Double Costs – Rule 9-1(5)

The plaintiff’s claim was dismissed with costs and the defendant sought double costs under Rule 9-1(5) on the basis that the defendant made an offer to settle that should have been accepted by the plaintiff.   The application for double costs was dismissed as the… Read more

Anti-Ademption Under S 48 WESA

Forbes v Millard Estate 2017 BCSC 361 discusses and gives effect to S. 48 WESA , known as the anti-ademption provision, when property is disposed of by a nominee such as a power of attorney prior to death that under common law the bequest would… Read more