Pleading Particulars of Undue Influence

Harder v Harder Estate 2017 BCSC 425 discusses the necessity of pleading sufficient particulars of allegations of undue influence  so that the defendant can meet the claim and not be taken by surprise at trial.   Particulars of Undue Influence   [15]        SCCR 3-7 (18)… Read more

Change of Venue of Trial

      Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city.   The defendants in Harder sought an order transferring the proceedings  from Victoria to… Read more

Conflict of Law- “Ordinarily Resident”

  Cresswell v Cresswell Estate 2017 BCSC 178 dealt with a conflict of law situation and held that the jurisdiction of the BC court should be denied for a wills variation action and held that it should properly be filed under Alberta court jurisdiction as… Read more

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Wolverton Securities Ltd v Schemel 2009 BCSC 1048 discusses the concepts of res judicata, cause of action estoppel and merger in judgement and states that the concepts are often used interchangeably in various judgments.   The concepts essentially bar a litigant from suing a second… Read more

Civil Fraud

The tort of civil fraud ( as opposed to criminal fraud)  was reviewed by the Supreme Court of Canada in Bruno Appliance and Furniture Inc. v Hyrniak 2014 SCC 8  and concluded there are four elements .   18      The classic statement of the elements… Read more

Prohibiting Lawyers From Acting

  Rubin Estate v Rubin Estate 2017 ONSC 1404  dealt with an application to prohibit a  lawyer from acting for her siblings and mother who were being sued by one daughter.   The lawyer in question had previously given US tax advise on a ” no… Read more

Pleading the Tort of Conspiracy

It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court  pleading of the tort of conspiracy.   For example, I recently had a situation where the executor attempted to sell the… Read more

The Principles of Interpreting Contracts

Dusanjh v Wright Estate 2017 BCSC 340 sets out the law relating to interpreting contracts when there is an ambiguity as to it’s meaning.   The children of the deceased brought a petition that argued the deceased had established a trust in their favour and the… Read more

Non Binding (Precatory) Words In Will Not a Trust

Non Binding ( Precatory)  words in a will were found not to create a trust that was legally binding on the trustee, but instead that the words were non binding ( precatory) and thus only morally binding an thus an outright bequest.   Killam v… Read more

Striking Out a Court Pleading

A court pleading may be struck out by the Court pursuant to Rule 9-5 ( 1) which states: 1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of pleading, petition or other document… Read more

Mental Incompetency and the Patient’s Property Act

Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly mental incompetency patient. A Trust company had earlier been appointed to manage the elderly woman’s  financial affairs pursuant to a Power… Read more

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions… Read more

Misfeasance of Public Officials

It occasionally occurs in estate litigation that a party has complaints about the misfeasance of  public officials, (usually  against the Public Guardian and Trustee), as a result of perceived deliberate  unlawful actions on the part of the public official against the complainant . The tort… Read more

Amending Court Pleadings

Russell Estate v Larson 2017 BCSC 113 contains a good summary of the law relating to amending court pleadings.   Pleadings are very important in litigation so as to give a concise definition of the issues to be tried and to allow the opposing party… Read more

Executor Added After Expiration of Wills Variation Limitation

Wills Variation Limitation. Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred. In the 1987 decision Cowan v Cowan 17 BCLR ( 2d)… Read more