Can An Unwitnessed Will be Valid?

Unwitnessed Will Valid

Section 58 WESA was once again successfully used in Re Litke Estate 2017 BCSC 1079 to find a hand written unwitnessed signed “will-like” document to be a valid will. Such documents are now routinely found valid by the courts if certain criteria are met. The… Read more

Understanding Inherent Jurisdiction of the Court

Inherent Jurisdiction of the Court

Mayer v Rubin 2017 ONSC 3498 dealt with the inherent jurisdiction of the court to supervise the management of estates, control its processes and protect those who cannot fend for themselves.  26      The court has broad and inherent powers to supervise the management of estates… Read more

Entering into Settlement Agreements

Settlement Agreements

Probably every litigator has had the experience of having entered into a settlement agreement only to have the opposing party attempt to repudiate the settlement agreement resulting in a court application to determine if the agreement is valid and enforceable or if it was successfully… Read more

Ordering Court Costs Against a Non-Party

Ordering Court Costs Against a Non-Party

Hollander v Mooney 2017 BCCA 238 discussed the Court’s jurisdiction to order costs against a non-party and held that it is limited to special circumstances such as fraudulent conduct, abuse of process, gross misconduct, or circumstances where the non-party is the “real litigant”: Anchorage Management… Read more

Exclusion of a Party at Trial or Discovery

Exclusion of a Party at Trial or Discovery

Generally speaking a party to an action has the right to attend the entire trial or the examinations for discovery of other parties to the action and exclusion of a party is an uncommon event, but appropriate in some circumstances. The BC Court of Appeal case Sisson… Read more

Fiduciary Duties: The Rules on Profit

The Profiteering Fiduciary

Fiduciaries must account for their handling of trust properties to the trust beneficiaries, and are not allowed to profit from being a fiduciary other than being paid reasonable fees for services rendered. Equity compels a fiduciary to hold and manage trust property on the terms… Read more

Vexatious Litigant Enjoined From Further Court Actions

Vexatious Litigant Enjoined From Further Court Actions

A particularly frivolous and vexatious claim commenced by ” God, Prince Kitsilano, Skidegate-Sterritt Family, in James Sterritt and Marya Watson , on behalf of all Indians and Muslims was struck and the litigant barred from commencing further court actions without leave of the Supreme Court…. Read more

Fiduciary Duties of Corporate Directors

Fiduciary Duties of Corporate Directors

Ascent One Properties Ltd v Liao 2017 BCSC 1017 dealt with an aborted real estate development project that alleged inter alia a breach of fiduciary duties by a corporate director and officer. The case outlines the law relating to the fiduciary duties owed by a… Read more

Executor/Trustee Must Decide and Not Delegate

Executor/Trustee Must Decide and Not Delegate

While a trustee or executor may retain an agent to perform a particular duty or give them advice, if the will permits delegation of such duties, the executor, trustee must ultimately make the decision about the course of action. The leading decision on the matter… Read more

Trustee Act: Trustees Breach of Trust Excused

Trustees Breach of Trust Excused

Section 96 of the Trustee Act allows the court to excuse a trustee for negligence or breach of trust when handling estate assets if the trustee acted honestly and reasonably. Section 96 states as follows: 96. If it appears to the court that a trustee,… Read more

Common Law Spouse Expanded

Common Law Spouse Expanded

Connor estate 2017 BCSC 978 could be a bit of a game changer for common law WESA spouses in the sense that the court finding that the parties were spouses could be an “expansion” of the concept of common law spouse. Kent J found a… Read more

The Court Orders Mental Capacity Exam

Court Orders Mental Capacity Exam

In Re Singh 2017 BCSC 984 the court invoked its parens patriae jurisdiction and  ordered a 93 year old father to undergo a mental capacity examination by two geriatric doctors . Two of his six children claimed that their father was mentally incompetent to manage… Read more

s it a Loan or Gift Within the Family?

Loan or Gift Within the Family?

ABP v KGW 2017 BCSC 977 provides a template of the criteria a court will examine in determining if a gratuitous advance of monies or property within a family from parents to children will be a loan or a gift. 5      The topic of gratuitous transfers between… Read more

Undue Delay: Equitable Defence of Laches

Undue Delay: Laches

Hrenyk v Preiss estate 2017 SKQB 151 contains a through discussion of the equitable defence of laches- the plaintiff’s undue delay in proceeding with a court action to resolution. 26 Laches is discussed in Ahone v. Holloway (1988), 30 B.C.L.R. (2d) 368 (C.A.), at page 378:… Read more

costs against lawyers

Personal Court Costs Against Lawyers

C.A.S. of the R.M.of W. v C.T.and J.B. 2017 ONSC 318 awarded personal court costs of $100,000 against a lawyer for her role in a custody battle involved in the Children’s Aid Society. The court found that the lawyer’s tactics and strategy had caused an… Read more