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

Funeral Service

  It is surprisingly common for loved ones of a deceased person to argue or even litigate over the funeral service and disposition of the remains of a deceased person. One of the leading cases in BC is Kartsonas v Kartsonas Estate 2010 BCCA 336… Read more

Mistake

Teather v Kawashima 2016  BCSC  2231 involved litigation where the defence of mistake was argued and the Court reviewed the law.   When parties are negotiating a contract it may occur that  one party is thinking of one thing while the other party is thinking… Read more

“Survive By Five Days”

S  10 of WESA provides for when a person does not survive a deceased person by five (5)  days or longer when provided for in an instrument(  ie a will) is conclusively deemed to have died before the deceased persona for all purposes and thus will… Read more

Chain of Executorship When Executor Dies

The chain of executorship when the executor dies before finishing his or her  duties  refers to where probate has been taken by an executor who survives the original testator, the right of such executor to a grant of probate does not cease and the representation to… Read more

Fertility and WESA

A deceased husband’s frozen sperm at a fertility centre was declared to be personal property under WESA and previous case law and thus could be inherited by the widow on an intestacy. The court in KLW v Genesis Fertility Centre 2016 BCSC 1621 ordered to release of… Read more

Taxation of a Lawyers Account

Lawyer client relationships sometimes go off the rails and a dispute may arise about an unpaid account. The remedy is taxation of the account before a registrar of the Supreme  Court and both the client and the lawyer have the right to have the matter… Read more

Who Can Be an Expert Witness

The complexity  litigation issues  has increased the need and use of expert witnesses, and just who can be one is sometime an issue in itself. Some of the experts that I have  utilized over years of estate litigation are geriatric psychiatrists, accountants and forensic auditors, and… Read more