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 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 or… 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

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

Early Vesting v Contingent Gifts

In order to determine the date at which the recipients of the interest are determined, it is necessary to determine whether the gift was vested or contingent A contingent interest is one that is subject to the happening of an event that may never occur…. Read more

Wrongful Death Claims – Loss of Financial Support

Wrongful Death Claims Yesterday I blogged about the Family Compensation Act of British Columbia which allows a spouse, parent, or child of a person whose death has been caused by the wrongful act negligence or default of another, to sue for compensation. There are several… Read more

Wrongful Death Claims and The Family Compensation Act

Tegemann v. Pasemko 2007 BCSC 1062 is a good case example of the principles for compensation under the Family Compensation act of British Columbia. In this particular case the deceased was a 50-year-old mother, who is survived by her husband aged 49 at the time… Read more

Capacity To Make a Will

Capacity To Make a Will   A person making a Will must understand:   The nature of the act of making a Will: a. That he will die; b. That the Will will come into operation on his death, but not before; and c. That… Read more

Joint Property Owners Can Force Sale

The Partition of Property Act   Joint owners of property whether as joint tenants or tenants in common can force a sale of the property using the Partition of Property act. It is common for parties to purchase properties together and register the property jointly,… Read more

Mental Capacity Required to Live Apart From Spouse Is Low, While Capacity to Instruct a Lawyer Is High

Fuhr ( Litigation Guardian of) v. Tingey 2013 BCSC 711 dealt with the issues of whether a claimant had sufficient mental capacity to instruct counsel in divorce proceedings. the claimant died before trial, and while the issue then became moor, the Court provided reason for… Read more