Hearsay Evidence In Estate Litigation Is Generally Admissable

  Hearsay evidence is generally  more admissable than in any other area of the law. Modonese v Delac 2011 BCSC 82, affirmed by the Court of Appeal at 2011 BCCA 501, provides a summary of the law re hearsay evidence. Hearsay: General Principles [79] The Supreme… Read more

Hearsay Evidence Admitted as Necessary and Reliable

The test for hearsay evidence in short is, is  it necessary and reliable The Ontario Appeal Court recently admitted statements made by a deceased to family members prior to his death as evidence of his insurer’s mistaken cancellation of one of the deceased’s accidental death… Read more

Courts Summary Dismissal of Capacity /Undue Influence Claim

Summary Dismissal  of Capacity and Undue Influence Claims   Orfus Estate v. Samuel & Bessie Orfus Family Foundation 86 E.T.R. (3d) 6, is an Ontario Court of Appeal case that upheld the summary dismissal of a daughter’s claim of lack of capacity and undue influence… Read more

Administrator Pendente Lite

Administrator Pendente Lite It is a frequent occurrence in estate litigation that situations arise where the executor is unable to act, or there is no executor or administrator at all, and the validity of the will or the estate is very much in question. In… Read more

abuse of process

Abuse of Process

Kellogg v Kellogg estate 2013 BCSC 946 involves a situation that is very common in estate litigation-a self represented plaintiff alleging serious allegations such as fraud or undue influence, lack of capacity and so forth,when in fact all of the allegations are groundless, and amounts… Read more

“Tenor of the Will”

Sometimes poorly drafted wills fail to expressly provide for the appointment of an executor. The will however may direct a person to perform one or more duties that may be described as those of an executor, and accordingly the courts have developed the concept of… Read more

Court Appoints Majority Vote Trustee and Denies Judicial Trustee Appointment

Re Newton estate 2013 BCSC 799, involves a court application between two competing trustees to be appointed the third majority vote trustee of the family trust. When only two remaining trustees were unable to agree on a replacement. One of the trustees applied to appoint… Read more

“Legal Disability” In BC

The term “legal disability” is only defined in the BC Rules of Court, and not in any other statute in this province. Rule 20-2(2) of the BC Rules of Court provides that “a proceeding brought by or against a person under legal disability must be… Read more

Promissory Estoppel

In Anderson v Anderson 2010 BCSC 911, the deceased prior to his death transferred his interest in a cottage to his second wife for one dollar and other good and valuable consideration.   The plaintiffs were the deceased’s children from his first marriage. For several… Read more

Disclaimer of Life Interest Accelerates Children’s Subsequent Interests

    Disclaimer and Acceleration in estate disputes   Re Brannan Estate v Public Trustee (1991) 41 ETR 210 BCCA. The deceased testatrix who died in 1987, directed her trustees to pay $400 per month to her husband until his death or remarriage, whichever occurs… Read more

Misrepresentation

Buccilli v Pillitteri 2012 ONSC 6624, is a misrepresentation case. It involved a family estate dispute after a tragic death where all the parties had a one third interest in a family business. After the deceased’s death, his surviving widow, on the advice of her… Read more

“Debt Owing” In Will Held Not Owing Due to Statute of Limitations

Statute of Limitations Neudorf Estate v Sellmeyer 2012 SKQB 463 is a sensible decision from the Saskatchewan Queen’s bench interpreting a common situation in will construction disputes, namely the clause that if any of the testatrix’s children owed the deceased money at the time of… Read more

The Vexatious Litigant

Vexatious litigation generally involves legal proceedings brought solely to harass or oppress the opposing party. Vexatious litigation may range from a first-time, frivolous lawsuit to repetitive, meritless applications brought within an otherwise proper lawsuit. In a nutshell, vexatious litigation involves an abuse or misuse of… Read more

How Judge’s Assess Witness Credibility

Judge’s Assessment of Witness Credibility Any trial lawyer will attest that one can have the best court case in the world, but if the trier of fact does not believe your witnesses, then it is a foregone conclusion that the trial will be lost. I… Read more

Dying Intestate With No Next of Kin Will Escheat

Many people mistakenly believe that if a person dies intestate(without a will), then the estate goes to the government.This is not the case as the provision of the Estate Administration act before deaths occurring March 31,2014 and WESA thereafter,  will prevail with an intestacy formula… Read more