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 of civil… Read more

Prohibiting Lawyer From Acting

Rubin Estate v Rubin Estate 2017 ONSC 1404  dealt with an application of prohibiting 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 names… 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

Damage Assessments on Appeal

The appeal case of Gadhri v 0760815 BC Ltd 2017 BCCA 31 confirmed long standing law that an appeal court will not vary a trial judge’s award of damages assessments unless the following occurs: “An appellate court will not interfere with a trial judge’s assessment… Read more

The Court’s Power to Conrol Itself (Vexatious Litigants)

Semenoff Estate v Semenoff 2017 BCCA 17 involved the Appeal Court reviewing the power of the court to control it’s own conduct and that of  vexatious litigants appearing in court. The case arose from an appeal of 30 issues from a summary judgement hearing  and… Read more

Judicial Bias

Allegations of judicial bias occasionally make the news when a litigant asserts that the proposed  Judge is so biased that a fair trial cannot be obtained, and the Judge is asked to recuse him or herself. Bias is very different from a court finding a… Read more

Suspicious Circumstances

Arauju v Neto 2001 BCSC 935 is an undue influence /lack of capacity case that discusses suspicious circumstances.   The court found that due to suspicious circumstances the will maker was not allowed to rely upon the presumption that he was mentally capable when the… Read more