Tataryn – The Leading Wills Variation Case in BC

In Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn] the Supreme Court of Canada clarified the law of wills variations and held that a will may be varied under the WVA where there are legal or moral obligations to provide maintenance and support for… Read more

Ad Hoc “Casual” Fiduciary Relationships

Sedin Estate v Rusin 2011 BCSC 1207 is an excellent example of financial abuse of an elderly person by a trusted financial advisor who was found to be in a casual and ” ad hoc “fiduciary relationships with the deceased. The deceased and her husband became… Read more

The Presumption Against Intestacy

Presumption Against Intestacy In Wills Interpretation Re Murray Estate 2007 BCSC 1035 has been previously blogged by disinherited.com and is a good case relating to the rules of construction in interpreting a will. One of the golden rules of wills interpretation is that the court… Read more

25 Tips For Drafting Better Wills and Minimizing Liability

25 TIPS   FOR DRAFTING BETTER WILLS and MINIMIZING LIABILITY   1.        Take your time. Be cautious. Seriously consider charging your actual time on a Wills file. If your client objects, then educate the client about the amount of time needed to prepare a… Read more

Use Technology to Gather Evidence In Estate Litigation

Evidence In Estate Litigation One of the greatest hurdles that plaintiffs estate litigators face is gathering evidence to prove to a court what one strongly suspects occurred prior to the death of the deceased. The deceased is obviously not in a position to testify, and… Read more

Public Guardian and Trustee Can Be Sued For Mismanagement of Patient’s Affairs

It is clear that the Public Trustee can be held liable for damages arising out of its negligent management of the patients estate. This was initially confirmed by the British Columbia Court of Appeal in Wood v.  British Columbia (Public Trustee) (1986), 70 B.C.L.R. 373 (… Read more

Pre-Nuptial Agreement Held to Be Bar to Wife’s Wills Variation Claim

Pre-Nuptial Agreement Martinson v Anniko 2009 BCSC 14 is illustrative of where a marriage agreement  is ultimately  “fair”, it will be held to bar a spouse’s Wills Variation claim brought after the death of a spouse.  The Court was also critical of the steps taken… Read more

Wills Lawyer Liable For Damages to Intended Beneficiary

Wills Lawyer Liable For Damages to Intended Beneficiary

Meier v Rose 2012 CarswellAlta 185 is a good example of a lawyer’s negligence in the preparation of a last will and testament, and the consequent damages awarded by the court against the lawyer in favor of the intended beneficiary who did not inherit. The… Read more

Tracing and Accounting For Assets

Tracing & Accounting For Assets It is very common in estate litigation that the form of an asset may change substantially over a period of time. For example a bank account of cash can be converted into a stock portfolio, which in turn can be used… Read more

Credibility Revisited

This blog revisits the law relating to credibility. On November 4.11 disinherited.com blogged ” The Importance of  Credibility“.That is an understatement  and then some.The following observations of O’Hallaran J.A. in Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.) 354 at pp. 356-357 are… Read more

Abandoned “Love Child” Fights Back

Austin v Les 2006 BCSC 2100 is a wills variation case where disinherited.com was the plaintiff’s counsel representing a 62-year-old daughter of the deceased person who was essentially given away to be raised by others. Marg Austin was born at a time when it was… Read more

Independent Legal Advice and Rebutting A Presumption of Undue Influence?

Independent Legal Advice Modonese v Delac Estate 2011 BCSC 82 has a very interesting discussion on whether or not independent legal advice will rebut a presumption of undue influence where that presumption might exist. The function of independent legal advice is to remove a taint… Read more

Mediation Works In Estate Litigation

Disinherited.com concluded another successful mediation this week. While discussing the overall process of mediation with the mediator, we realized that 19/20 of our last mediations together have resolve successfully. That 95% success factor in mediation is in itself astounding as it is the approximate general… Read more

Sexual Abuse Cases Are Different From Other Victims of Crime

Sexual Abuse Cases After having done estate litigation cases for almost 40 years, and exclusively for the last almost 20 years, I am continually amazed at the number of disinherited adult children assert that they were sexually abused by a parent, usually a stepfather, adopted… Read more

Bequests To a Non Existent Person

Gertrud Eberwein ( Re Eberwein Estate 2012 BCSC 250) and her very deficient will, made a bequest to a non existent person. Yesterday’s blog related to what happened to her bequest to a Charity that she had previously donated to, but no longer existed at… Read more