Assets Passing Outside of the Estate

Assets Passing – Probably most people in North America die holding assets that pass from their name to others or their estate that pass both ” inside” and “outside” of the estate.   A deceased’s will only distributes assets that were personally owned by the deceased… Read more

Leave to Appeal

The legal test for leave to appeal was restated in Ho Estate v. Ho 2016 BCCA 253 , upheld at 2016 BCCA 378, where the decision of one appeal judge was upheld by a panel when he refused leave to appeal on the basis that… Read more

Entered Court Orders

The Court does not have jurisdiction  to re open entered court orders but may vary the order where has been a change of circumstance. The court refused to re open or vary an entered court order in Sugrim v Sugrim 2016 BCSC 1644 when after entering… Read more

Adoption Purposes

Adoption is for all purposes. I advised a legal enquiry today that he could not claim aginst the estate of his natural father (birth  parent”) since he had been adopted by another party and that for estate claims, his adoption was for “all purposes”. Section 3 WESA re… Read more

Will Varied to Give Daughter Entire Estate

Hagen-Bourgeault v. Martens 2016 BCSC 1096 varied a will (S. 60 WESA) to give a 25 year old daughter with two young children on social assistance, the entire estate of $2,200 per month until 2025, instead of her husband of two years who was well… Read more

Claim Dismissed For No Standing

Re Tomlinson Estate 2016 BCSC 1223 dealt with a nephew contesting his aunt’s will when he was neither a named beneficiary under the will or an intestate heir had his claim dismissed for lack of standing. Standing is a pre-requisite to advancing claims regarding a… Read more

Settlement Offers and Court Costs

Norris v Burgess 2016 BCSC 1451 deals with settlement offers and court costs, that is how courts adjust cost upwards or downwards either in favour of one party or against the other party depending on the parties conduct and the terms of any formal offers… Read more

Executor Can Be Liable For Unaccounted Expenses

Jackson v King 2003 BCSC 328 is a good decision on a passing of accounts and held inter alia that an executor is entitled to be indemnified expect for unaccounted or excessive expenses for which the executor can be held personally liable.   The Court… Read more

Severance of Court Actions

Severance of Court actions joined together may occur in civil litigation.   The Public Guardian and Trustee for BC v Johnston 2016 BCSC 1388 has an excellent review of the law as to when the courts will order that court actions be severed from the… Read more

Summary Trial In Court’s Discretion

Whether or not a case is suitable or not to be decided by way of a summary trial is a matter of the court’s discretion depending on an a number of factors. Cotter v Point Grey Golf and Country Club 2016 BCSC 10 summarized the… Read more

Mutual Wills Create Constructive Trusts

Mutual Wills Create Constructive Trusts Mutual wills  as opposed to mirror wills, are not very common, but when they exist and  breached, that breach creates a trust that can be used to trace the assets into the hands of third parties. Mutual wills are not… Read more

Failed Undue Influence Claims and Special Costs

Special costs are frequently awarded against failed litigants of undue influence claims, but this was not the case in our Allart estate v Allart 2016 BC SC 768.   There the judge declined to do so on the basis that the plaintiff had an honest… Read more

Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predecaesing, any of which results in   disappointed beneficiaries not receiving the intended gift.   Instead… Read more

Burden of Proof In Mental Capacity

Becker v Becker 2016 BCSC 487 nicely summarizes much of the law relating to mental capacity aka testamentary capacity including the law re the burden of proof in mental capacity cases.    THE  LAW   51      The burden of proving testamentary capacity is on the… Read more

Joint Venture Agreement

Leontowicz Estate v Bakus 2016 BCSC 601 dealt with the validity of a trust relating to mining stakes where it was argued that the deceased had entered into a Joint Venture Agreement that must be based on whether or not there is a binding contract… Read more