When is Cy-Pres Doctrine Used in Vancouver?

What Cy-Pres Doctrine means is that the courts will try and find a general testamentary intentioned to benefit a charity. If that charity has been misdescribed in your will, the courts will try and find another charity of a similar fashion and intention to instead… Read more

Using DNA in Vancouver Estate Litigation for Proof of Paternity

DNA in British Columbia estate litigation is widely used and it is readily accepted by the courts as proof of paternity in particular. The first time I used DNA was in approximately 1991 when somebody committed suicide off a ferry. Their body was never found. A… Read more

Obligations of a Power of Attorney

Obligations of a Power of Attorney

The Manitoba Supreme Court in Krawchuk v Krawchuk 2017 MBQB 47 outlined the legal obligations  of a power of attorney. Manitoba’s laws for powers of attorneys are essentially the same as for British Columbia. The Court stated inter alia as follows: 18      The applicable law with… Read more

Partition of Property Orders

Partition of Property Orders in Joint Tenancy Agreements

Whether property be owned as tenants in common, or as joint tenants, if the parties cannot agree on the sale of the property, the BC Court has the power to do so under the provisions of the Partition of Property Act RSBC. This blog sets… Read more

Determining Legal Fees When No Retainer Agreement is Present

Determining Legal Fees When No Retainer Agreement is Present

If a lawyer does not have a contingency fee agreement or retainer agreement then the courts will use various criteria to determine the appropriateness of the legal fees based on quantum meruit (a reasonable fee for services rendered). One of the chestnuts in this area of… Read more

Appointing and Removing a Litigation Guardian

Appointing and Removing a Litigation Guardian

Under Supreme Court Rule 20 – 2 (2) a proceeding brought by or against a person under a legal disability must be started or defended by his or her litigation Guardian. A person is typically under a legal disability when under the age of 19… Read more

Intention to Gift: The Legal Requirements

Intention to Gift: The Legal Requirements

A gift requires three elements  to be legally effected, namely an intention to donate, an acceptance of the gift, and delivery of the gift. All three elements must be present for the gift to be complete, and it is then irrevocable. The gift is the… Read more

Notice to Dispute: Understanding the Rules

Notice to Dispute: Understanding the Rules

A party wishing to contest the issuance of a grant of probate or administration may file a Notice to Dispute under Rule 25 (10) of the Supreme Court Rules. While a notice to dispute is in effect, the registrar must not issue an estate grant…. Read more

Removal of Executor/Trustee For Conflict of Interest

Removal of Executor/Trustee For Conflict of Interest

As a BC estate lawyer, I am often asked to remove an executor/trustee. Re Ching 2016 BCSC 1111 is one of several cases where the courts have indicated their reluctance to remove an executor for a perceived conflict of interest. The executor/trustee was however removed… Read more

Ensuring Independent Legal Advice

Ensuring Independent Legal Advice

Many transactions are set aside in British Columbia by the courts on the basis that true independent legal advice was not obtained by the person making a radically changed will or transferring an asset for little or no consideration. A lawyer’s duty in such situations… Read more

Lower Courts Bound By Higher Courts (Stare Decisis)

Lower Courts Bound By Higher Courts (Stare Decisis)

Most people likely know that higher courts such as appeal courts bind the decisions of lower courts through precedents. The legal term is stare decisis (to adhere to precedents), and the legal rationale is that like decisions should be decided alike so as to give more… Read more

Dysfunctional Families: The Predator Spouse

Dysfunctional Families: The Predator Spouse

A disturbing and increasing  trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually  financial affairs and marries the victim in short order. Even if the family had been reasonably functional prior to… Read more

The Principles of Moot Court Cases

The Principles of Moot Court Cases

Moot court cases occur when a determination is sought on a matter which when decided by the court will not have any practical effect on the existing dispute such as the legal issue no longer exists. The courts do however have discretion when the moot… Read more

Release of Claims and Different Claim

Release of Claims and Different Claim

Bykerk v Kappalka Estate 2017 BCSC 655 discussed a previous Release of Claims signed by the parties to a second court action under the Wills Variation act (Section 60 WESA) and found that the Release was not binding to prevent the latter claim. The court… Read more

Hearsay Evidence In Vancouver Estate Disputes

Hearsay Evidence In Vancouver Estate Disputes

Hearsay evidence is very common in Vancouver estate disputes and generally speaking is allowed by the courts subject to a few principled rules so long as it is not relied upon for “the truth of its contents”. Hearsay evidence was discussed in Horton v Bruce… Read more