Incorporation By Reference In Wills

Wills on occasion mention another document in existence that the will maker wants to be given effect in the terms of the incorporation by reference in wills. Re Kellogg Estate 2013 BCSC 2292 pagraphs 74-79 discusses the law relating to incorporation by reference.   [74]     The… Read more

The Presumption of Revocation of A Lost Original Will

Presumption of Revocation of A Lost Original Will law is set out at paragraph 9 by Haider v Kalugin 2008 BCSC 930:   “The applicable law is not in dispute.  When an original will has been lost, mislaid or destroyed or is not available, an application… Read more

When Does a Common Law Marriage Come to an End

It is not always clear, even between the spouses themselves, when a common law marriage came to a legal end. The Courts have accordingly developed certain guidelines to assist them. The test of whether a relationship is at an end is objective; W.A.S. v. D.W.T., 2003… Read more

Presumption of Advancement Barely Alive Between Spouses In BC

M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd. 2014 BCSC 1482 discussed amongst other things, the presumption of advancement post the SCC case Pecore in 2007, and held that the presumption is still barely alive between spouses in BC Madame Justice Dardi stated in  Anderson v…. Read more

The Modern Approach to Proprietary Estoppel

Nociar v Cound 2014 BCSC 1343 contains a passage that outlines the modern approach to the criteria re proprietary estoppel. A claim arose as to the right of a son to live on a farm owned by his father who developed dementia and then died…. Read more

The Factors To Determine an Executor’s Compensation

In the well-known case of Re Toronto General Trusts and Central Ontario Railway (1905), 6 O.W.R. 350 (H.C.), five central factors should be considered by the audit judge in arriving at the amount of an executor’s compensation. The maximum fee for obtaining probate and distributing… Read more

Party Cannot Take Tax Benefit For One Purpose and Deny It For Another

In Rosenthal v Rosenthal, 1986 CarswellOnt 288 (HCJ), it was held that an individual cannot take a position to obtain a tax benefit and then deny that position to obtain a different benefit. At para 51 of Rosenthal, the court noted that “it is being… Read more

Courts Only Deal With Serious Litigious Matters, Not Trifling

The dog poo case on the neighbour’s lawn  from Ontario this week made National headlines for frivolous courtroom claims, and concluded with the court admonishing the parties for wasting it precious time. The Court in Morland-Jones v Taerk 2014  ONSC 3061 wisely turfed the complaint… Read more

UNDUE INFLUENCE – WESA SHIFTS BURDEN OF PROOF SO MORE PLAINTIFFS WILL NOW WIN

Under s. 52 of the WESA Legislation , the onus of disproving undue influence has shifted to the person who has received the gift under the will where a position of domination and dependence exists between the will maker and the beneficiary. Prior to the… Read more

Lawyer Mentorship Evolves Into Sponsorship

Lawyer Mentorship Evolves Into Sponsorship Three years after our article, “Mentorship: A Beacon of Hope in the Practice of Law” was published in the June 2011 issue of BarTalk, much has evolved in our mentorship association and in our respective legal careers. The mentee perspective – The story of Candace Cho Since 2011, much has… Read more

Common Law Spouse Criteria In British Columbia

What Qualifies as a Common Law Spouse in BC The legal issue as to whether or not a couple, whether they be heterosexual or homosexual, when they purport to be common-law spouses of each other has increasingly become more common and at the same time… Read more

Executor Ordered to Personally Pay Court Costs For Reckless Litigation Behavior

There are many risks that the role of an executorship may bring, and one of them is the actions of the court in denying the executor to be indemnified for his or her legal fees, and under appropriate circumstances such as in recklessness, an executor may… Read more

Transfer of Property For No Money Set Aside Under S. 60.2 Adult Guardianship Act

A common estates dispute involves the transfer of property from one to another without any monies being paid, and a possible remedy to have the transfer set aside is under S 60.2 of the Adult Guardianship Act of British Columbia. Such a situation arose in Committee… Read more

Joint Tenancy Severed By Unregistered Transfer

The Supreme Court of Canada in 1962 held that an un-registered transfer of land was sufficient to sever the joint tenancy and create an interest of one in tenancy in common and extinguish any right of the other joint tenant to claim title by survivorship…. Read more

Common Law Wife of 8 Years awarded 2/7 Estate Under WIlls Variation Act

Li v Ellison 2014 BCSC 501, is a Vancouver Wills Variation action where the deceased testator did not provide for his common law wife of eight years under his will, and the court varied the will under the Wills Variation act to award her the… Read more