Special Costs Refused In Ng “Right To Life Case”

Right To Life Case Ng v Ng 2013 BCSC 1492 discusses in detail the law relating to special costs, as claimed by the winning party in the previous litigation where the family of Kenny Ng, who had been in a coma for 7 years, in… Read more

Proving Wills – Solemn Form vs Proof In Common Form

  There are two ways to prove a will- the easy way known as common form and the contested prove it way of solemn form   Proof in solemn form 2009 BCSC 194 Romans Estate v. Tassone discusses the different forms of proving a will-… Read more

Pre Trial Examination of Witnesses

    Parties believe they are entitled to examine witnesses under oath before trial, but in fact, it involves a court application which may or may not succeed.   Rule 7-5of the Rules of Court ( previously Rule 28) governs such application. Rule 7-5 (1)… Read more

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