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

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 party propounding… 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

S. 52 WESA-Undue Influence Presumption re Dependence

S. 52 WESA is a new provision that applies where a person establishes that a party was in a position where there was potential for dependence or domination of the will maker, and alleges that a gift in the will, resulted from the party using… Read more

Defective Will “Cured” S. 58 WESA

S. 58 of WESA ( Wills, Succession and Estates act) once again came to play to cure an otherwise  defective will in Re Smith Estate 2016 BCSC 350. Once again the leading case in BC to date  of re Young estate 2015 BCSC 182 was followed… Read more

Wills Made Before March 31, 2014 Need Strict Compliance

Wills made before March 31, 2014 , are still subject to the strict rules of compliance that existed prior to when WESA came into force as per Public Guardian BC v Sheaffer et al 2015 BCSC 1306. The deceased died in 2011 leaving a 1974… Read more

Memorandums to Wills

Willmakers often leave an unsigned, un-witnessed and undated memorandums alongside his or her Will  that usually purports to  dispose of largely sentimental valued personal effects and household items, that may or may not be of legal effect.   The question generally is whether the memorandum was… Read more

Estranged Adult Child Awarded %40 MOdest Estate

A disrespectful, estranged adult child and almost abusive,who was also virtually unemployable and living on welfare, was awarded 40% of the $50,000 estate of his mother, Bronson v Bronson Estate 1996 BCJ 3038 The plaintiff was raised as a single child in abject poverty by… Read more

Incorporation of Documents Into a Will

Because the facts in  Yaremkewich Estate 2015 BCSC 1124 resulted in the Justice allowing a 12 page detailed document relating to specific bequests to form part of a will likely signed prior to the date of said document, the court dealt with the law relating… Read more

Vested – Did You Inherit?

Black’s Law dictionary defines vested or vesting “as having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent.” To be vested, a right must be more than a mere expectation based on an anticipation… Read more

WESA S.58 Curative Provisions for Defective Wills

Defective Wills in WESA S.58 Estate of Young 2015 BCSC 182 is the first reported case of the Court’s curative powers under Section 58 of WESA to cure otherwise defective wills. The executor brought an application for a Court determination as to whether two additional documents… Read more