WESA- s 58- unsinged will valkid

Unsigned and Undated Will Valid ( S.58 WESA)

An unsigned will was found to be valid under section 58 WESA as representing the deceased persons fixed and final testamentary intentions that varied an earlier will in the decision Skopyk Estate 2017 BCSC 2335. The application to cure the will, under the provisions of… Read more

Enforcing Settlement Agreements

Probably most litigation lawyers have experienced the situation where a settlement is made on behalf of their client who then subsequently changes his or her mind. I have found this to have occurred on several occasions in recent years after a mediation of many hours… Read more

Rights to Purchase vs. Rights of First Refusal | Disinherited

Rights to Purchase vs. Rights of First Refusal

The distinction between a right to purchase as opposed to a right of first refusal was addressed in the Ontario decision of 2284064 Ontario Inc. v. Shunock 2017 ONSC 7146, which followed the Ontario Court of Appeal decision of 2123201 Ontario Inc. v. Israel Estate… Read more

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 property, custody and guardianship… Read more

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 original wills, both as… Read more

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. There is  a huge range of… Read more

Everything To Know About Executors

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

Power of Attorney Creates a Fiduciary

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 (Unjust Enrichment) For Care-Worker

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 categories… Read more

Undue Influence: Presumption Rebutted

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 at… Read more

Dysfunctional Families: Your Family May Actually Hate You

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 articles… Read more

Charging Clause & S.43 WESA

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