Litigation Guardian: Lawyers Can Assess Mental Capacity
August 5th | 2017
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 Costs
August 4th | 2017
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
Mental Suffering
August 3rd | 2017
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
Trustee Removal
August 2nd | 2017
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
August 1st | 2017
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
July 31st | 2017
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
July 28th | 2017
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
July 27th | 2017
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
July 26th | 2017
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
July 25th | 2017
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
July 24th | 2017
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
July 23rd | 2017
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
July 21st | 2017
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
July 20th | 2017
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. Case Transferred to Alberta
July 19th | 2017
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