Suspicious Circumstances

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 will… Read more

Funeral Service

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 where… Read more

The Defence of Mistake

The Law of 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 of… Read more

"Survive By Five Days"

“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

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: Is This Reproductive Matter Property?

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

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?

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

Copy of Will Probated

Copy of Will Probated

Under certain circumstances a copy of a will rather than the original, may be admitted to probate as the last valid will of the deceased. The competing claimants will typically  argue that there is a presumption of revocation when the original will cannot be produced…. Read more

Laches

Laches

Laches was discussed and rejected by the court in Grewal v Khakh 2016 BCSC 2055, where the court quoted the Supreme Court of Canada: 52           In  M. (K.) v. M. (H.), , [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85 (S.C.C.) at para. 98, where the… Read more

Assets Passing Outside of the Estate

Assets Passing Outside of the Estate

Assets Passing – Probably most people in North America die holding assets that pass from their name to others or their estate that pass both ” inside” and “outside” of the estate. A deceased’s will only distributes assets that were personally owned by the deceased at… Read more

Interim Distribution Ordered

Interim Distribution Ordered

An interim distribution of $250,000  of his maximum estate entitlement of $460,000 was ordered to a 76 year old former spouse of the deceased who needed funds in Davis v Burns Estate 2016 BCSC 1982. The application was made  under section 155 of the Wills,… Read more

Fraudulent Misrepresentation

Fraudulent Misrepresentation

Jasmur Holdings Ltd v Taynton Developments Inc. 2016 BCSC 1902 reviewed inter alia the tort of fraudulent misrepresentation. 116.       The tort of fraudulent misrepresentation has four elements. They were recently summarized by the Supreme Court of Canada in Combined Air Mechanical Services Inc. v. Flesch 2014… Read more

Removed Executor Gets No fees

Removed Executor Gets No Fees

Watson v Strong 2016 BCSC 1897 dealt with a passing of accounts claim for executor’s fees by a removed executor  that was rejected by the court. The court instead awarded %4.5 fees on an interim basis to the executor who replaced the removed executor, with… Read more

Re-Opening a Case For New Evidence

Re-Opening a Case For New Evidence

  B(K) v B(J) 2016 BCSC 1904 involved an application for reopening a case that had been decided and attempt to introduce new evidence as to the increased valuations of two properties. The over riding test is  it in the interests of justice to do… Read more