“Where There Is a Will, I Want To Be In It”- But Can I Say No?

“Where there is a will, I want to be in it” is one of the great   PARAPROSDOKIAN in the English language. A PARAPROSDOKIAN is a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected in a way that… Read more

“Reading of the Will” Only takes Place in Movies and Cartoons

We have all seen movies, television shows, and cartoons that depict anxiety ridden prospective beneficiaries typically gathered in a dark paneled lawyer’s office for the so-called “reading of the will”, usually by the lawyer. In 38 years of practice, disinherited.com has  done this once, and only… Read more

S 20 Patients Property Act Creates Rebuttable Presumption re “Gifts”

Patients Property Act The decision Sutherland, committee of the Estate of Fountain v Dorland and Rendell 2012 BCSC 615, which disinherited.com blogged about yesterday, also contained  an additional issue relating to section 20 of the Patient’s Property Act, which says as follows: 20. Every gift… Read more

Litigation Guardians Appointed For The Mentally Incapable

The Ontario case of Richi v Kakaoutis  2011 Carswell 14616  is an example of what procedure was followed in Ontario when a litigant became mentally ill, requiring a litigation guardian to be appointed to represent his interests because he was incapable. I suspect it would… Read more

Dismissal of Court Claim For “Want of Prosecution”

McBeth-Kearns v Marples 2012 BCSC 714  is an estate litigation case that like so many, can often end up sitting on the lawyer’s desk or filing cabinet for  years. Charles Dickens wrote about the inordinate delay in estate litigation back in his day in his… Read more

Client Privilege and the Wills Cases Exception

Client privilege and the wills cases exception are the few line of cases that will not remain privileged after death. It is very frequent in estate litigation that for various reasons, the disinherited parties often wish to obtain the wills files of the solicitor who drafted… Read more

Public Guardian and Trustee Can Be Sued For Mismanagement of Patient’s Affairs

It is clear that the Public Trustee can be held liable for damages arising out of its negligent management of the patients estate. This was initially confirmed by the British Columbia Court of Appeal in Wood v.  British Columbia (Public Trustee) (1986), 70 B.C.L.R. 373 (… Read more

Credibility Revisited

This blog revisits the law relating to credibility. On November 4.11 disinherited.com blogged ” The Importance of  Credibility“.That is an understatement  and then some.The following observations of O’Hallaran J.A. in Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.) 354 at pp. 356-357 are… Read more

Mediation Works In Estate Litigation

Disinherited.com concluded another successful mediation this week. While discussing the overall process of mediation with the mediator, we realized that 19/20 of our last mediations together have resolve successfully. That 95% success factor in mediation is in itself astounding as it is the approximate general… Read more

Bequests To a Non Existent Person

Gertrud Eberwein ( Re Eberwein Estate 2012 BCSC 250) and her very deficient will, made a bequest to a non existent person. Yesterday’s blog related to what happened to her bequest to a Charity that she had previously donated to, but no longer existed at… Read more

Court Orders Production of Public Guardian Investigation File

Disinherited.com does not usually report on court decisions from other jurisdictions, but the re Landry Estate case from Ontario ( 2011 CarswellOnt 8830) is one that I believe that would also be followed in British Columbia, if such a decision in fact does not already… Read more

Court Refuses Special Costs, But Awards Increased Costs On Scale C Due to Case Difficulty

In our previous blog we discussed the award of special costs made against an estate  administrator who breached his duties. In  Antrobus v Antrobus  2012 BCSC 613, the Court declined an award of special costs but instead ordered costs to be increased under Tariff C of … Read more

Disclaimer – “Thanks, But No Thanks”

Disclaimer- Thanks, but No Thanks What do you do when a formerly beloved relative dies, bequeathing to you a piece of swampland polluted by atomic waste?  Must you accept this “gift”? The legal answer is clearly “No” so long as you disclaim the gift in… Read more

Court Orders DNA Samples From Non Party to Court Action

  The Manitoba court decision of Nandwani v Nandwani 2011 CarswellMan 501, caught the attention of disinherited.com out here in BC. The case had to do with an application for Court ordered DNA samples. The deceased immigrated to Canada when his purported son was five months… Read more

Missing Persons – The Curator

Sometimes people go missing  in circumstances where there is insufficient evidence or insufficient time elapsed to apply for an order of presumption of death. In such circumstances, counsel will wish to consider appointing a curator under the provisions of the Estates of Missing Persons Act. Essentially,… Read more