Factors Extending the Limitation Act
March 26th | 2019
Every type of court action has some limitation in the number of years within which that type of action must be brought. The only exception I can think of it relates to claims of sexual assault of minors. For example in Wills variation cases a… Read more
Removing an Executor 2019
March 25th | 2019
Burke v . Burke 2019 BCSC involved an application brought under sections 130 1C and section 132 of WESA, along with section 31 of the trustee act, and the inherent jurisdiction of the court to remove an executor and trustee and substitute another. The introduction… Read more
Fiduciary Must Account For Breach of Duty
March 24th | 2019
The law is clear that a fiduciary who has breached a duty must account, but only for what the fiduciary acquired in consequence of the breach of duty. The High Court of Australia in Warman International v Dwyer (1995) 128 ALR 201 (HCA) at 214… Read more
Power of Attorney Has to Account
March 23rd | 2019
This article is about forcing a power of attorney who subsequently becomes the executor and trustee of an estate to account to the estate for monies handled during the course of acting as power of attorney. The problem arises in a common scenario when the… Read more
Identifying Undue Influence
March 19th | 2019
A checklist for identifying a relationship of domination and dependence that might involve a situation of undue influence is: 1. Explore whether will-maker is in a relationship of dependency, domination or special confidence or trust. Sample questions to consider: • Do you live alone? With… Read more
What Makes It a Will?
March 18th | 2019
Quinn Estate v Rydland 2019 BCCA 91 visited the old Chestnut Bennett v Toronto General Trusts to set out the bottom line of what makes a document a will. Section 58 of WESA enables a court to give testamentary effect to documents that were intended… Read more
Medical Records Admissible As Business Records
March 12th | 2019
Medical records of the deceased were admitted into evidence as business records in Re Singh Estate 2019 BCSC 272. In Ares v Venner (1970) SCR 608 at 626 held that medical records can be admitted as an accurate record of facts of the author, and… Read more
Swingers Not In Marriage Like Relationship
March 10th | 2019
CFM v GLM 2018 BCSC 815 involved a determination as to whether the claimant was a spouse as defined by section 3 of the Family Law act. In order to succeed, the claimant must establish that she lived with the respondent in a marriage like… Read more
Intention of Transferor Determined At Time of Transfer
March 10th | 2019
In Gully v Gully 2018 BCSC 1590 the court rejected a claim by a mother who transferred her property into joint tenancy with her son without his knowledge, and held that the transfer was a gift as per the law relating to intention at the… Read more
The Doctrine of Purchase Money Resulting Trust
March 4th | 2019
In Nishi v Rascal Trucking 2013 SCC 33 , the court described the doctrine of the purchase money resulting trust as follows. At paragraphs 1-2: 1. A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of property,… Read more
Resulting Trust Applies to Joint Tenancy Survivorship
March 3rd | 2019
Bergen v Bergen 2013 BCCA 492 at paragraph 42 states that when a property is purchased by one party, but held in joint tenancy, there is a presumption that the transferor intended to retain the entire beneficial interest, including the right of survivorship, unless there… Read more
S. 52 WESA: The Presumption of Undue Influence
March 1st | 2019
Trudeau v Turpin Estate 2019 BCSC 150 is a recent decision dismissing a claim for undue influence and discussing in particular section 52 WESA and the presumption of undue influence that it sets out. Section 52 of the Wills, Estates and Succession act WESA provides… Read more
Charitable Purpose Trusts
January 30th | 2019
Doukhobor Heritage Retreat Society 1999v Vancouver Foundation 2019 BCSC 54 involved a decision relating to the criteria of whether or not a document qualified as a charitable purpose trust. If the document was not a charitable purpose trust, then the trust would be void pursuant… Read more
“Knowing Receipt” of Trust Property
January 23rd | 2019
Vancouver Coastal Health Authority v Moscipan 2019 BCCA 17 dealt with the proceeds of misappropriated funds from the employer of the deceased, in favor of her husband, and the court reviewed the law relating to “knowing receipt” of trust property. The leading decision is Citadel… Read more
Suspicious Circumstances and Testamentary Capacity
January 20th | 2019
It’s important that will drafters be aware of and watch for any suspicious circumstances that might exist when taking will instructions. Preparing a will in the presence of suspicious circumstances simply increases the risk that the wills draftsperson might end up testifying about the validity… Read more