Obligations of a Power of Attorney

Obligations of a Power of Attorney

The Manitoba Supreme Court in Krawchuk v Krawchuk 2017 MBQB 47 outlined the legal obligations  of a power of attorney. Manitoba’s laws for powers of attorneys are essentially the same as for British Columbia. The Court stated inter alia as follows: 18      The applicable law with… Read more

Gratuitous Agency

Gratuitous Agency

Agency can simply be defined as a person authorized by another to act for him or her with entrusted business, and the agent represents that the agent is acting for another under the contract of the relation of agency. The  case of Siemens v Howard… Read more

Relationship Between Parent and Child Is Fiduciary

A (LS) v A. ( WH) Estate 2014 BCSC  1910  ( Antrobus v Antrobus) discusses that the relationship of parent and child is fiduciary in nature, and that parents have an obligation to care for, protect and rear their children . This line of authority was… Read more

Joint Bank Holder Not Liable For Breach of Fiduciary Duty

Estate of Annie Mackay v Mackay 2015 ONSC 7429 held that  anon contributing joint bank acco8unt holder with her mother , who paid herself to manage the bank account, was held not liable for breach of fiduciary duty. No specific terms of payment were ever… Read more

Fraudulent Misrepresentation

Jasmur Holdings Ltd v Taynton Developments Inc. 2016 BCSC 1902 reviewed inter alia the tort of fraudulent misrepresentation. 116.       The tort of fraudulent misrepresentation has four elements. They were recently summarized by the Supreme Court of Canada in Combined Air Mechanical Services Inc. v. Flesch,… Read more

Tracing Converted Assets

  Converted assets can be traced and reclaimed under certain circumstances if they can be identified. For example a bank account of cash can be converted into a stock portfolio which in turn is used to buy a house that is subsequently sold and put… Read more

What is a Discretionary Trust?

The BC Court of Appeal in Putzki v Saunders 2016 BCCA 344 examined the nature of a family property trust and discussed what is a discretionary trust. A discretionary trust is commonly used in estate planning often  when dealing with infants, disabled people on a government… Read more

Promissory Estoppel Revisited

The BC Appeal Court in Cowper-Smith v Morgan 2016 BCCA 200 allowed an appeal in part to over turn the successful  the claim brought for promissory estoppel at trial by finding that the claim should not be allowed where a non owner of property gave assurances… Read more

Joint Account Holders Are Fiduciaries

  MacKay v. MacKay Estate,2015 ONSC 7429, held that one joint account holder may serve as a fiduciary in relation to the other simply via the traditional indicia of such a relationship as set out in Frame v. Smith, [1987] 2 SCR 99 (i.e., the… Read more

Liability of Trustees

Daum v Clapci  2016 BCCA 176 recently discussed the liability of a trustee for failing to properly insure a hotel that burned  stating inter alia. The test for liability is essentially one of honesty  and reasonable man prudence in administering the estate affairs as if… Read more

Company Director Is a Fiduciary

It is common in estate disputes to encounter a party attempting to deal inappropriately with the affairs of a limited company whose shares should be an estate asset, and when this occurs, one should look for a breach of the directors fiduciary duty owed to… Read more

Fiduciary – Employee For Employer

The law of fiduciary duty is very relevant to estate litigation cases but is also prevalent in almost any other claim where equity is involved, including an employee can be found to be a fiduciary for the  employer.   M A Concrete Ltd v Truter… Read more

Pre Taking Executors Fees Is Breach of Fiduciary Duty

Despite holding that the pre-taking of a $70,000 fee by an executor was a serious matter, being contrary to Supreme Court rule 25 – 13, a breach of the executors fiduciary duty, and done without consultation with the beneficiaries or their consent, the court excused… Read more

Fiduciary Duty or Negligence?

Diamond Willow Ranch v Oliver (Village) 1987 BCJ 2973  discusses the difference between a claim for breach of fiduciary duty and that of negligence. The Court dismissed a claim for  breach of fiduciary duty alleged against  a provider of geotechnical reports that may have been negligently… Read more

Fiduciary Duty

Attorney’s Fiduciary Obligations Increase When Donor Incapable

Turning to the law, as one might expect, the fiduciary obligations of an attorney become elevated once the donor of the power becomes incapable. This is described by the Ontario Court of Appeal as follows (Richardson Estate v. Mew, 2009 ONCA 403): In Banton [Banton… Read more