Independent Legal Advice

Independent Legal Advice – 7 Factors to Look For

I am typically attempting to set aside a transaction or a will and I often look to see if there was independent legal advice (ILA) given and if so, was it truly independent. For example on a recent file a daughter took her mother to… Read more

Use of Multiple Wills Approved

Use of Multiple Wills Approved

In re: Berkner Estate 2017 BCSC 619 the Court approved the use  of Multiple Wills in estate planning.  The applicant submits that a person is entitled to have more than one valid will. As an example, multiple wills may be used when a will maker… Read more

Gratuitous Agency

Gratuitous Agency

Agency can simply be defined as a person authorized by another to act for him or her with entrusted business, and the agent represents that the agent is acting for another under the contract of the relation of agency. The  case of Siemens v Howard… Read more

Gift to Witness to Will Cured By S 43 WESA

Bach Estate 2017 BCSC 548  cured a gift to witness to will to be valid   when prior to WESA  on March 31, 2014 it would  have been invalid.   One of the witnesses to the will was the husband of the deceased and a beneficiary under… Read more

Spoliation of Evidence

Spoliation of evidence is the intentional destruction of relevant evidence when litigation exists or is pending. There are few cases on the issue in Canada but it does occur on occasion.   In Holland ( Guardian ad litem) v Marshall 2008 BCCA 468 the appeal… Read more

Executor Trustee Removed For Delay

Re Collett Estate 2017 BCSC 473 is the most recent of a judicial trend to remove an executor trustee for delay in the distribution and finalization of an estate.   In Collett the deceased died in 2008 and was removed as a result of the inordinate delay… Read more

Security For Costs of Trial and Appeal

Security For Costs of Trial and Appeal

Arbutus Bay Estates Ltd v Canada ( A-G) 2017 BCCA 133 dealt with the law for security for costs for both an appeal as well as  trial that lasted 18 days and was appealed. Security for costs was awarded in the amount of $50,000 for… Read more

Stay of Proceedings

Stay of Proceedings

Gerritse v Hospital For Sick Children 2017 ONSC 1859 dealt with an application for a stay of proceedings in one court case until the paternity issue in another case was firstly decided. The Court refused the application and cited the law as previously set out in… Read more

Shutting Down the Frivolous Vexatious Litigant

Shutting Down the Frivolous Vexatious Litigant

Canada v. Olumide 2017 FCA 42 set out a road map on how to rid the court’s back log of the frivolous and vexatious litigant, albeit with ” dignity and respect.” The Federal Court relied upon s 40 of the Federal Court act but most… Read more

Court May Hear Additional Evidence Before Entry of Order

Court May Hear Additional Evidence Before Entry of Order

Clayton v British American Securities Ltd ( 1934) 3 WWR 257 ( BCCA) upheld  the discretionary  power of a trial judge to hear additional evidence after judgement was pronounced but before the order was entered . At the close of a trial judgment was reserved and after the… Read more

Parens Patriae Jurisdiction of the Courts

Parens Patriae Jurisdiction of the Courts

Re Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs. The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection of… Read more

Pleading Particulars of Undue Influence

Pleading Particulars of Undue Influence

Harder v Harder Estate 2017 BCSC 425 discusses the necessity of pleading 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) requires that full… Read more

Change of Venue of Trial

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 the Vancouver… Read more

Conflict of Law: "Ordinarily Resident"

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 the… Read more

Res Judicata, Cause of Action Estopppel and Merger in Judgement

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 time… Read more