The “Badges of Fraud”

Fraud is a deception deliberately practiced in order to secure unfair or unlawful gain (adjectival form fraudulent; to defraud is the verb. As a legal construct, fraud is both a civil wrong (i.e., a fraud victim may sue the fraud perpetrator to avoid the fraud and/or recover monetary… Read more

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Winning an Undue Influence Case

WINNING AN UNDUE INFLUENCE CASE   In my experience in estate litigation, probably the most difficult issue to win at trial is that of undue influence. A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient… Read more

What the Court Needs to Know to Win a Wills Variation Action

S 60 of WESA allows the court to exercise its discretion re the claims of spouses and children against the assets of a deceased’s estate, on the basis that they were not adequately provided for in the estate.   The right to bring a Wills… Read more

Wills Variation Act Not Affected By WESA

The original plan for WESA was to restrict the right of an independent adult child to bring a claim against his or her parents estate on the basis that he or she will was not adequately provided for. A great deal of discussion took place… Read more

Revocation of a Will Under WESA

A will that was revoked before Part 4 of the WESA came  into force on April 1.14, is not revived by virtue of Part 4 coming into force (s. 186(3)). This exception is of particular importance if the will-maker marries after making a will. As… Read more

Mistakes In Wills and How To Fix Them

Mistakes in wills are frequently made and then subsequently not discovered until typically many years later after the passing of the will maker. The usual types of mistakes  break into two areas- that the will was not properly executed in accordance with established principles ,or… Read more

WESA# 37- S. 25 Allows For Removal of Executor

One of the most common complaints of estate litigants is the role, choice or behavior of the executor chosen by the deceased. The Courts are reluctant to remove an executor without valid reasons. For further in depth discussion of removal of executors, trustees ( personal… Read more

How to Sever a Joint Tenancy With a Co Owner

A prospective client called yesterday inquiring whether three siblings who had joint tenancy with a fourth sibling, can force a sale so as to buy out the troublemaking fourth sibling. I answered yes,  as the Partition of Property act allows for a severance of the… Read more

WESA #36- Vancouver Sun Quotes Trevor Todd

Ian Mulgrew: WESA, new wills and estates law brings sweeping change to B.C. Aims to provide greater certainty and simplify process for those distributing an estate The Wills, Estates and Succession Act (WESA) passed by the B.C. legislature on Sept. 24, 2009 finally comes into force… Read more

WESA #35-The Priority for Applicants to Be Appointed Administrator In Intestate Estates

Section 130 of WESA is a new section that provides for a priority of the various persons who may be entitled to apply for a grant of administration where the deceased died without a will (intestate) l.   The spouse has priority but may nominate… Read more

The Courts Power to Amend Pleadings

It is frequent in estate litigation that new facts arise and the claim must be amended to provide for the adequate remedy. This blog is a summary of the courts power to make such an order.   Rule 6-1(1) of the Supreme Court Rules provides… Read more

WESA #34- S. 2 Definition of Spouse Still Unclear

I was recently asked to write an article on the effect of WESA on the Wills Variation act for the Canadian Bar Association. There in fact are very few changes under WESA relating to the WVA, other than what the original definition of spouse had… Read more

Trevor Todd to Chair and Speak at WESA Conference June 6

The WESA conference: Everything a trial lawyer needs to know about the Wills, Estates and Succession Act. Opening Comments R. TREVOR TODD, Disinherited.com, Vancouver View From a Very Knowledgeable Bench THE HON. MADAME JUSTICE SANDRA BALLANCE, Supreme Court of BC, Vancouver THE HON. MADAME JUSTICE… Read more

The Implied Confidentiality of Document Exchange In Litigation

Sovani v Gray, Jampolsky and ICBC 2007 BCSC 403 deals with the issue of confidentiality relating to the disclosure of documents to non-parties to the litigation, without the consent of the actual parties to the litigation. The court held that to disclose discovery information by… Read more

WESA #33- It Starts Tomorrow- The Transition Rules

RULE 25-16—TRANSITION Rules 61 and 62 which had been around for at least three decades are now repealed and replaced with Rule 25-16 The Transitional Provisions, Repeals and Consequential and Related Provisions are set out in Sections 185-190 of WESA Definition (1) In this rule,… Read more