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

UBC Property Transfer Set Aside For Being a “Fraud On a Power”

Fraud On a Power It is a fraud on a power contained in a will to use a society created in accordance with the terms of the will to achieve indirectly the transfer of property to a non-object of that power which could not be done… Read more

Sibling Greed After Death

Sibling Greed After Death is an excerpt taken from a longer article I have written on the topic of just how greed enters the equation amongst siblings after the death of a parent, especially the last one. It is almost guaranteed that upon the death… Read more

The Differences Between Joint Bank Account and Joint Property

There are some particular features of a joint bank account that distinguish it from a joint tenancy in real property and these have been discussed by our Court of Appeal (Bergen v. Bergen, 2013 BCCA 492): ( see my blog on Bergen dated August 26.14… Read more

Mental Capacity Required For a Will Is the Same as Inter Vivos Transfer

 Mental Capacity Required For a Will   Brydon v Malamas 2008 BCSC 749 at paragraph 47 confirms that the test for mental capacity for an inter vivos transfer ( while  alive), is the same as the test of testamentary capacity, including the shifting of the… Read more

What Litigators Look For In Will Drafters Files

What Litigators Look For In Will Drafters Files   R. Trevor Todd Presented November 15,2014 at the BC Canadian Bar Conference in Scottsdale Arizona     I would be remiss in any discussion regarding the taking of will instructions, especially from the elderly and frail,… Read more

Commonlaw Elderly Spouse Awarded $90,0000 Under Wills Variation Act For Care Provided to Spouse

Commonlaw Elderly Spouse Awarded $90,0000   McFarlane v Goodburn Estate 2014 BCSC 1449 involved a plaintiff and testator, both widows and in their mid-60s to began to live together in 2000. They were both financially independent, and the evidence was clear that they had in… Read more

Wrongdoer Concealed Information Cannot Rely On Limitation Defence

Where a party has actively concealed wrongdoing, he or she cannot rely on a statutory limitation period to frustrate a cause of action by defending on the basis that the claim is out of time.   In order to show concealed wrongdoing, the party asserting… Read more

The Meaning of “All Remaining Cash” In a Will

Jones v BC Public Trustee (1982) 5 WWR 543, dealt with the interpretation of the words ” all remaining cash after expenses” in the deceased’s will. The deceased left a home made will, where after several specific bequests, he provided that ” all remaining cash… Read more

Unsigned Copy of Lost Will Admitted Into Probate

Is an unsigned copy of a lost will admittable? The law is clear: If the original will is last known to be in the will maker’s possession and cannot be found after death after an extensive search,  then the law presumes that the testator destroyed the… Read more

Ten Reasons Estates End Up In Court

The Top 10 Reasons Estates End Up In Court After 42 years of Vancouver estate litigation, I have noted that the top ten most common, but certainly not the only claims, are the following, in no particular order: Mental Capacity, Undue Influence, Wills Improperly prepared… Read more

1961 SCC Case Holds an Unregistered Transfer of Land Severs a Joint Tenancy

Sever JT SCC stonehouse. 1961 CarswellBC 159, 37 W.W.R. 62, [1962] S.C.R. 103, 31 D.L.R. (2d) 118 Stonehouse v. British Columbia (Attorney General) Stonehouse (Plaintiff) Appellant v. Attorney-General of British Columbia (Defendant) Respondent Supreme Court of Canada Judgment: December 15, 1961 Family Law — Family… Read more

Vancouver Estate Claims – Have You Been Disinherited?

Have You Been Disinherited? 1. MENTAL CAPACITY Legal test for capacity: Banks v. Goodfellow 1870 must understand that a will is being made and that it disposes property on death; must know the nature and extent of his property; must understand who has an appropriate… Read more

Severance of Joint Tenancies

The severance of joint tenancies is an increasingly important issue in estate litigation and can occur without the registered joint owners even knowing it if their conduct is inconsistent with joint ownership.   We often assume that property, registered in joint tenancy, will automatically pass… Read more