Breach of trust excused

Trustees Breach of Trust Excused

Section 96 of the Trustee Act allows the court to excuse a trustee for negligence or breach of trust when handling estate assets if the trustee acted honestly and reasonably. Section 96 states as follows:     96. If it appears to the court that… Read more

Removal of Executor/Trustee For Conflict of Interest

Removal of Executor/Trustee For Conflict of Interest

As a BC estate lawyer, I am often asked to remove an executor/trustee. Re Ching 2016 BCSC 1111 is one of several cases where the courts have indicated their reluctance to remove an executor for a perceived conflict of interest. The executor/trustee was however removed… Read more

Trustee For Child Under Will Has Priority

Trustee For Child Under Will Has Priority

Leniuk Estate 2016 BCSC 159 held that a trustee for a child appointed under a will has priority over a guardian appointed under the Family Law act to hold funds in trust for a child’s behalf. An application to have a guardian appointed trustee who… Read more

Use of Multiple Wills Approved

Use of Multiple Wills Approved

In re: Berkner Estate 2017 BCSC 619 the Court approved the use  of Multiple Wills in estate planning.  The applicant submits that a person is entitled to have more than one valid will. As an example, multiple wills may be used when a will maker… Read more

Renewal of Wills Variation Claim Not Served In Time

Rodgers v Rodgers Estate 2017 BCSC 518 dealt with an application for a  renewal  court proceedings in a wills variation claim under S 61 WESA that states in 61 ( B) that the proceeding must be served on the executor of the will no later than 30… Read more

Executors Entitled To Indemnification For Fees and Expenses

Re Collett Estate 2017 BCSC 473  confirmed the well settled law that executors at entitled to  indemnification for properly incurred fees and expenses in carrying out their administration of an estate. Jackson et al v. King et al, 2003 BCSC 328 at para. 12: As Executors,… Read more

Trustee Fee For Care and Management of Estate Assets

Re Pedlar 1982 BCJ 1553 deal with the criteria for an estate trustee fee for the care and management of estate assets not to exceed .4% of the average market value of the estate assets.   It was recently followed in Collett Estate 2017 BCSC… Read more

Executor Trustee Removed For Delay

Re Collett Estate 2017 BCSC 473 is the most recent of a judicial trend to remove an executor trustee for delay in the distribution and finalization of an estate.   In Collett the deceased died in 2008 and was removed as a result of the inordinate delay… Read more

Passing Over an Executor

Passing over an executor utilizes essentially the same legal criteria as removing an executor except it occurs before the named executor starts to act in the representative capacity.   Re Thommasson Estate 2011 BCSC 481 removed a named  executor who was not a beneficiary but his… Read more

Statute Barred Debt to Estate Deducted From Beneficiary

Statute Barred Debt: Re Johnston Estate 2017 BCSC 272 upheld the rule in Cherry v. Boultbee  which provides that where a legatee of a share of the residue is a debtor of the estate, he or she is not entitled to receive his or her… Read more

Disinternment aka Exhumation

Disinternment , also known as exhumation of human remains is provided in the provision of the Cremation, Internment and Funeral Services Act SBC 1974. At common law a duty is imposed upon an executor to see that the deceased is buried in a manner befitting his… Read more

Executor Can Waive Solicitor Client Privilege

Haas Estate v Jane Doe 2017 BCSC 12 confirmed that an executor( personal representative ) of an estate can waive any solicitor client privilege that existed prior to the deceased’s passing. Mr. Haas died on February 15, 2016, leaving a will naming his only child,… Read more

Funeral Service

  It is surprisingly common for loved ones of a deceased person to argue or even litigate over the funeral service and disposition of the remains of a deceased person. One of the leading cases in BC is Kartsonas v Kartsonas Estate 2010 BCCA 336… Read more

“Survive By Five Days”

S  10 of WESA provides for when a person does not survive a deceased person by five (5)  days or longer when provided for in an instrument(  ie a will) is conclusively deemed to have died before the deceased persona for all purposes and thus will… Read more

Chain of Executorship When Executor Dies

The chain of executorship when the executor dies before finishing his or her  duties  refers to where probate has been taken by an executor who survives the original testator, the right of such executor to a grant of probate does not cease and the representation to… Read more