Cross Examination On An Affidavit
August 5th | 2018
In HMB Holdings Ltd v Replay Resorts Inc 2018 BCCA 263 the BC Court of Appeal reviewed the law relating to cross examination on an affidavit. The authority to order cross examination on an affidavit is found in Rule 22-1( 4)(a) of the Supreme Court… Read more
What Constitutes Practicing Law
August 4th | 2018
Vogt v Scott 2015 BCSC 1725 reviews the essential elements of what constitutes the practice of law, as defined by the Legal Professions act. There has been much discussion recently in the United States as to whether Michael Cohen was acting as President Trumps lawyer… Read more
Revocation of a Grant of Probate
August 3rd | 2018
The leading case in British Columbia on the revocation of a grant of probate is Desbiens v Smith Estate 2010 BCCA 394 . That decision was decided on the basis of improper service of the application for the grant of probate under what was then… Read more
Implied Waiver of Solicitor Client Privilege Restricted
August 2nd | 2018
HMB Holding Ltd v Replay Resorts Inc 2018 BCCA 263 reviewed the law relating to implied waiver of solicitor client privilege and restricted it’s application. Communications with respect to legal advice between a lawyer and the client is generally speaking a near absolute protection that… Read more
25 Will Drafting Tips
July 31st | 2018
1. Take your time. Be cautious. Seriously consider charging your actual time on a Wills file. If your client objects, then educate the client about the amount of time needed to prepare a Will so as to ensure that the client’s lifetime accumulated wealth will… Read more
Executor Denied Remuneration For Critical Behavior
July 28th | 2018
Re the Estate of Lillian Lowe 2002 BCSC 813 is an example of where the executors claim for fees was denied entirely by the court for inter alia her critical failure to supervise the professionals that she retained. The general principles relating to remuneration of… Read more
Loan or Gift In the Family Context?
July 27th | 2018
It is often very difficult to distinguish between loans and gifts in the family context. This has become a particularly common problem in recent years with the dramatic increase in the value of properties, and parents attempting to this assist their child and partner in… Read more
Subject to Financing Conditions
July 25th | 2018
The BC Court of Appeal upheld the trial judge in Gordon Nelson Inc v Cameron 2018 BCCA 304 when it refused to imply a term in a real estate contract that the purchaser use “best efforts” to find suitable financing to remove the condition for… Read more
Executor Remuneration
July 22nd | 2018
Re Mikaloff 2018 BCSC 756 reviews the criteria relating to the appropriate amount of executor remuneration on a passing of accounts application. The deceased died in 2015 and directed that her will be distributed among nine beneficiaries equally. The main asset was a Vancouver home,… Read more
Court Ordered Interim Distribution in Wills Variation Claims
July 21st | 2018
There is both court authority and statutory authority allowing the court to exercise its discretion to release a part of the testator’s estate as an interim distribution in a wills variation action. Section 66 WESA allows the court the power to release a part of… Read more
Executor/Trustee Removal: The Law Summarized
July 19th | 2018
1. Feeney’s The Canadian Law of Wills, 4th ed. (Markham: LexisNexis, 2000) at 8.17 states: An executor has a duty to settle the affairs of the estate and to distribute in accordance with the terms of the Will. A power granted to an executor exists… Read more
Apportioning Court Costs
July 5th | 2018
PKMB v DHL 2018 BCSC 1039 dealt with the apportionment of court costs where both the plaintiff and the defendant achieved some success. Rule 14 –1 ( 15) permits the court to award costs: The court may award costs of a proceeding that relate to… Read more
S.58 WESA Does Not Apply to Wills With “Pour Over” Revocable Trusts
June 29th | 2018
Re Quinn Estate 2018 BCSC 365 held that the curative provisions of section 58 WESA did not apply to a will, with a ”pour over” clause that created revocable and amendable trusts. Mr. Quinn was a well know when general manager in the National Hockey… Read more
S. 52 WESA and Rebutting the Presumption of Undue Influence
June 27th | 2018
Ali v Walters Estate 2018 BCSC 1032 reviews the law relating to rebutting the presumption of undue influence in regard to a will as dealt with in S.52 of WESA that creates such a presumption and specifies who bears the burden of proof. S 52… Read more
Divorcee Lacks Standing to Contest Deceased Former Husband’s Will
June 24th | 2018
In Carswell v Engle Estate 2018 BCCA 164 the Court of Appeal confirmed that a divorced widow did not have legal standing to apply to vary her former deceased spouse’s will and challenge its validity. The court held that she was clearly not a spouse… Read more