Conflict of Interest: Disqualifying a Lawyer

Conflict of Interest: Disqualifying a Lawyer

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

All About Executors and Administrators

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

Rambling Journal Upheld As NOT a Valid Will

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

Independent Legal Advice Necessary

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

Trustees For Infants versus Guardians

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

Life Estate Can Be Partitioned

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

The Threshold for Establishing Duress

Duress

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

The Proportionality Principle

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

Amending Pleadings

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

Life Estate Valuation

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

Occupational Rent Ordered For Non Vacating Son

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

Power of Attorney Compensation

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

Executor Personally Liable For Court Costs

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

Trustee Cannot Be in Conflict With Duty

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

Life Insurance Denied For Criminal Activity

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