Party Cannot Take Tax Benefit For One Purpose and Deny It For Another

In Rosenthal v Rosenthal, 1986 CarswellOnt 288 (HCJ), it was held that an individual cannot take a position to obtain a tax benefit and then deny that position to obtain a different benefit. At para 51 of Rosenthal, the court noted that “it is being… Read more

The Prudent Investment Standard For Trustees

Miles v Vince 2014 BCCA 290 allowed an appeal and removed a  trustee for failure to abide by the Prudent Investor Standard expected of a trustee. The Trustee had used the funds from an insurance trust for a speculative real estate investment The Prudent Investor… Read more

The Resealing of a Grant of Probate From Another Jurisdiction

Property of the deceased in each jurisdiction he or she owned assets will require a resealing of the grant of probate. When the deceased person owns assets requiring probate in more than one jurisdiction, it is necessary for the executor to obtain a grant of… Read more

Trustee Must Follow Terms of the Trust

It is trite law that a trustee is obliged to follow the terms of a trust and has no discretion to deviate from the trust’s  terms. In McLeod v McLeod BCSC 2014, Butler J. found an executor  to have breached the terms of a trust by… Read more

Court Rejects Removal of Executor – False Allegations Lead to Special Costs

False allegations of misconduct, including fraud, based on mere suspicion  by a beneficiary, were not sufficient to remove an executor for wrongful conduct, and instead brought rebuke against the complainant in the form of an award of lump sum special costs against him. In Watson… Read more

The Executor’s Duties and Powers Under a Will

  Reznik v Matty 2013 BCSC 1346, a wills variation action in BC, has a very succinct summary of the executor’s duties and powers of under a will.     The trial in Reznik was inter alia related to a Wills Variation action where 4… Read more

Executor Removed For Lack of Impartiality and Conflict of Interest

  An executor was removed for improper behavior as executor, including lack of impartiality and conflict of interest in the decision Browne v. Browne Estate 2014 BCSC 656. The parties were half siblings, and by her will,  their mother divided the estate equally between the… Read more

WESA – Priority for Appointment of Administrator In Intestate Estates

Section 130 of WESA is a new section that provides for a priority of the various persons who may be entitled to apply for a grant of administration where the deceased died without a will (intestate)   The spouse has priority but may nominate another… Read more

Executor Ordered to Repay Monies Back to Estate Paid Out Before Expiration of 6 Month Limitation

  Executor Ordered to Repay Monies Back to Estate Paid Out Before Expiration of 6 Month Limitation Stevens v. Wood Estate (Re), 2013 BCSC 2380 Until six months have passed from the issuance of probate of a will, s. 12 of the Wills Variation Act,… Read more

Trustee Removed For Selling Assets Below Market Value and Benefiting

Trustee Removed For Selling Assets Below Market Value and Benefiting VanKoughnett & Others v. Austin, 2006 BCSC 1856 is authority for the proposition that a trustee removed under section 30 of the Trustee Act where there is potential conflict of interest between the personal interests of… Read more

The Executors Obligation To Maintain Estate Assets

Executors obligation cannot just idly stand by and allow estate assets to deteriorate or waste- the executor and trustee has a duty of care to mange and preserve the estate assets. The legal test is as follows: The traditional standard of care of an executor/trustee is… Read more

Advising The Personal Representative

1. INTRODUCTION It is perhaps trite to state that the role of the drafting notary or solicitor is simply not to fill in the blanks and record the testator’s instructions, including his or her choice of executor, but instead to actively advise and draw to… Read more

Removing and Replacing Executors and Trustees

Removing and replacing an executor/ trustee is one of the most common enquiries that I receive. The matter is both intriguing and somewhat complex, largely due to historical developments concerning the legal differences between the role of an executor and a trustee. 2. VOLUNTARY REMOVAL… Read more

Removal of an Executor – Trustee

  Dunsdon v Dunsdon 2012 BCSC 1274 has an excellent and brief summary of the law relating to the removal of an executor-trustee, pre WESA as of April 1, 2014 : [202] Put broadly, a trustee may be removed where his or her acts or… Read more

Passing of Executor’s Accounts

The following article is that of Master Young on the passing of executor’s accounts, as presented to the Wills and Trusts Subsection in April 2012. Master Young ,described the registry procedure for probate grants. The initial vetting of probate applications goes to senior registry staff to… Read more