Litigation Guardian: Lawyers Can Assess Mental Capacity

Litigation Guardian: Lawyers Can Assess Mental Capacity

In Gengenbacher v. Smith, 2016 BCSC 1164, the court examined what is the test that a solicitor must satisfy to determine if the solicitor can represent an individual seeking to be a litigation guardian of an adult under a legal disability and determined that the… Read more

Offers to Settle and Double Cost Awards

Offers to Settle and Double Costs

Connor Estate 2017 BCSC 1341 dealt with the issue of whether the plaintiff should be  awarded double costs after the filing of an offer to settle that the plaintiff beat at the trial. The issue was whether the plaintiff Chambers was a spouse of the… Read more

Claiming Damages for Mental Suffering

Mental Suffering

Even in estate disputes client’s often wish to claim damages for mental suffering caused by other parties. The law relating to such was discussed in the Ontario case of Guschewski v Gushewski 2017 ONSC 4553 In Prinzo v. Baycrest Centre for Geriatric Care, (2002), 60… Read more

9 Legal Principles of Trustee Removal

Trustee Removal

Two Ontario cases summarize the law relating to the removal of a trustee appointed by a will and would likely be followed as the law in British Columbia. In Chambers Estate v. Chambers 2013 ONCA 511, the court found that a testator’s wishes as to who… Read more

The Presumption of Advancement In BC May Be Dead

The Presumption of Advancement In BC May Be Dead

HCF v DTF 2017 BCSC 1226, a divorce case, traces the historical roots of the presumption of advancement and finds that it is an outmoded and “dead” legal principle in today’s BC society.  Times have changed because women are no longer economically vulnerable and same… Read more

Constructive Trust Remedy and Tracing

Constructive Trust Remedy and Tracing

Li v Li 2017 BCSC 1312 involved a father suing his daughter for the wrongful conversion of monies and the court finding for the father based on the remedy of constructive trust and tracing the monies. THE  LAW [225]     Mr. Li seeks a declaration that he… Read more

Revocation of Wills Post WESA

Revocation of Wills Post WESA

The introduction of the Wills Estates and Succession act (WESA) on March 31,2014 made a few  significant changes to the law relating to the revocation of wills. Probably the most significant change was that marriage after the execution of a will no longer revokes a… Read more

Same Sex Partnership: The Civil Marriage Act

Same Sex Partnership

Hinks v Gallardo 20114 ONCA 494 held that a British same sex partnership was a valid spousal marriage in Ontario and presumably also in British Columbia. A Canadian and a British citizen entered into a civil partnership under the Civil Partnership Act (UK) which created… Read more

Re-Opening a Trial: New Evidence

Re-Opening a Trial: New Evidence

Lambert v Peachman 2017 ONSC 4270 outlined the law relating to what is necessary in the form of new evidence to re-open a trial. Analysis 26      The principles and authority to re-open evidence of a trial are well established and noted by the Supreme Court… Read more

Validity vs. Administration of a Trust

Validity vs. Administration of a Trust

Tyrell v Tyrell 2017 ONSC 4063 dealt with a jurisdictional case as to whether the  Supreme Court of Ontario had jurisdiction to deal with the administration of a trust as opposed to the validity of a trust. The court found that the test is whether… Read more

Trustee Personally Liable For Trust Contract

Trustee Personally Liable For Trust Contract

In Johnson v North Shore Yacht Works Corp. 2017 BCSC 1229 the court held that a trustee of a trust was personally liable for a contractual debt that was entered into by the trust.  The case concerned responsibility for the costs of repairs carried out… Read more

Dysfunctional Families: Financial Control

Dysfunctional Families: Financial Control

Financial abuse in dysfunctional families is a common tactic to gain power and control within the family. I was reminded about this fact when reading an article in the British Telegraph today about a large divorce settlement between  the long time spousal owners of Laura… Read more

Sworn Financial Disclosure

Sworn Financial Disclosure

Shinder v Shinder 2017 ONSC 4177  sets out the importance of how sworn financial disclosure in family (and estate) court actions must be honest and complete as it is a “bedrock principle” that the parties are entitled to rely upon. The Supreme Court of Canada… Read more

Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust

The BC Appeal Court in Winstanley v Winstanley 2017 BCCA 265 ordered a new trial on the basis that the trial Judge erred in his determination as to whether the evidence at trial had rebutted the presumption of a resulting trust that arises when a… Read more

B.C. Court Case Transferred to Alberta

B.C. Case Transferred to Alberta

In subsequent reasons for judgement Cresswell v Cresswell 2017 BCSC 1183 a BC Court ordered a court action transferred to Alberta after finding that the plaintiff did not have standing to bring the action in BC as she was ordinarily resident in Alberta, did not… Read more