Conflict of Interest: Disqualifying a Lawyer
September 8th | 2017
Stewart v Stewart 2016 BCSC 2256 dismissed an application to have an acting lawyer disqualified as counsel for having a conflict of interest. The court set out the criteria for such an application. The two questions to be asked in determining whether there is a… Read more
All About Executors and Administrators
September 7th | 2017
INTRODUCTION 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 actively advise and draw to the… Read more
Rambling Journal Upheld As NOT a Valid Will
September 6th | 2017
Re Hadley Estate 2017 BCCA 311 was upheld by the Court of appeal in finding that a rambling journal was not a will that could be “cured” by S 58 WESA. This was the first appeal court decision on Section 58 WESA. Section 58 of… Read more
Independent Legal Advice Necessary
September 5th | 2017
Bertolo v Bank of Montreal 1986 CarswellOnt 801, a decision of the Ontario Court of Appeal was one the earlier cases in Canada to support the legal proposition that independent legal advice(ILA) must be present, if in this situation, a bank is to rely upon… Read more
Trustees For Infants versus Guardians
September 4th | 2017
Leniuk Estate 2016 BCSC 159 held that a guardian for an infant is not permitted to be appointed the trustee to receive and hold in trust on the infant’s behalf all of the property to which the child is entitled to receive in place of… Read more
Life Estate Can Be Partitioned
September 1st | 2017
Aho v Kelly 1998 CarawellBC 1285 held that a one third owner of a property who also held a life estate in the property had the right to capitalize the life estate and force a sale of the property under the partition of property Act…. Read more
Duress
August 31st | 2017
Milionis v Rivas 2017 ONSC 5001 discussed the law of duress when an application was brought to seek a declaration that a $400,000 mortgage was invalid as it was purportedly signed under duress. The court disagreed as it is difficult to set aside an agreement… Read more
The Proportionality Principle
August 30th | 2017
Campoli Electric Ltd v Georgian Clairlea Inc 2017 ONSC 4898 commented on the proportionality principle that is emerging in litigation- the quest for a cultural change to best promote the most expeditious and least expensive determination of every proceeding on its merits. Disinherited.com attempts to… Read more
Amending Pleadings
August 30th | 2017
The Law regarding Amending pleadings was discussed in Director of Civil Forfeiture v Sanghera 2017 BCSC 863 where the director applied to amend the notice of claim which was opposed by the defendant. [18] Mr. Justice Davies clearly set out the law regarding amendments and… Read more
Life Estate Valuation
August 28th | 2017
Re: Zarowiecki 1092 CarswellMan 99 dealt with the valuation of a life estate in a homestead and followed the formula dictated by the Supreme Court of Canada in Re Morice v Davidson (1943) SCR 545, utilizing actuarial calculations. The Supreme Court of Canada decision, Re… Read more
Occupational Rent Ordered For Non Vacating Son
August 26th | 2017
An order for occupational rent of $42000 per month was ordered against a son who had lived with his mother and who effused to vacate the estate asset home for ten months after his mother’s passing in Fileppelli Estate 2017 ONSC 4923. The Court also… Read more
Power of Attorney Compensation
August 23rd | 2017
An attorney under a power of attorney in British Columbia cannot be compensated for services provided unless the document expressly provides for same. The attorney may however be reimbursed from the adult’s property for reasonable expenses incurred. The Act states: Payment and Expenses of Attorney… Read more
Executor Personally Liable For Court Costs
August 22nd | 2017
Craven v Osdacz 2017 ONSC 4396 held an executor of an estate personally liable for costs totalling about $150,000 for reckless and unreasonable behavior that amounted to reprehensible for opposing a plaintiff’s court action for no valid reason other than to frustrate and delay the… Read more
Trustee Cannot Be in Conflict With Duty
August 21st | 2017
Equity will not allow a person who is in a position of trust to carry out a transaction where there is a conflict between his or her duty and his or her interest. It is a rule of universal application that no trustee shall be… Read more
Life Insurance Denied For Criminal Activity
August 19th | 2017
Velentyne Estate v The Canada Life 2017 BCSC 1444 upheld the insurer’s exclusion clause that mortgage insurance would not be payable upon a death if the death resulted as a result of criminal activity. The Court found that the deceased was a drug dealer who… Read more