S. 52 WESA-Undue Influence Presumption re Dependence

S. 52 WESA is a new provision that applies where a person establishes that a party was in a position where there was potential for dependence or domination of the will maker, and alleges that a gift in the will, resulted from the party using… Read more

Committeeship Order Terminates Representation Agreement and Power of Attorney

Re Unrick 2015 BCSC 1330 held that an order of committeeship under the patient’s property act terminates both an existing Power of Attorney, as well as a Representation Agreement. A petition was brought by the 91-year-old patient’s next of kin to have her declared mentally… Read more

Committeeship Criteria

The criteria to be considered when appointing a committee under the Patients Property Act was stated in Re Stewart 2014 BCSC 2321: The application for an appointment invokes the parens patriae jurisdiction of the court and is governed by an assessment of who will serve… Read more

PPA Revokes Power Attorney and Representation Agreement

Uhrick (Re), 2015  BCSC 1330 discusses how a finding under s19 of the Patients Property act appointing a committee as the court ordered personal representation of a mentally incompetent person revokes any outstanding power of attorney and may revoke a Representation Agreement relating to health care… Read more

Early Onset Dementia

Early onset dementia is occurring more frequently and developing a decade before than it was 20 years ago, a wide-ranging international study has found. Anecdotally the research confirms what many of us have experienced first-hand. One of my classmates, Rick Sugden became known as the” lawyer’s… Read more

Mental Incapacity and Paranoid Delusions

Mental Incapacity and Paranoid Delusions Verwoord v. Goss, 2014 BCSC 2122 is one of a few cases, and perhaps a trend in incapacity law, where the courts have found a will invalid by reason that the deceased was delusional about a beneficiary that should have been… Read more

Public Guardian Often The Best Committee In Dysfunctional Families

Public Guardian and Trustee   It is very common in estate litigation for adult children of the dementing parent to litigate in order to have the court determine which party should be appointed the legal representative of the incapable parent, and be appointed the committee…. Read more

Delusions and Mental Capacity

Delusions and Mental Capacity   In order to have mental capacity to sign a will or transfer your property while alive for no consideration, a person must be free of delusions in accordance with the leading case of Banks v Goodfellow. To paraphrase the test… Read more

Mental Capacity Required For a Will Is the Same as Inter Vivos Transfer

 Mental Capacity Required For a Will   Brydon v Malamas 2008 BCSC 749 at paragraph 47 confirms that the test for mental capacity for an inter vivos transfer ( while  alive), is the same as the test of testamentary capacity, including the shifting of the… Read more

Alzheimers – A Looming Epidemic

At a recent summit in New York , the looming epidemic of Alzheimers was described as “the world’s most significant unaddressed health risk, as there is neither a cure nor a means of slowing its progression.” It’s a particularly cruel disease; memory is what makes… Read more

Mental Capacity to Marry Is Low

The British Columbia courts have once again held that the amount of mental capacity required to marry for an individual, is in fact a very low standard. As the saying goes “any fool can get married ” What is wrong with this analysis however is the… Read more

Taking Instructions and Testamentary Capacity

Will makers must always conduct an assessment of mental capacity when taking will instructions. In 1992 I was Plaintiff’s counsel in the decision Mikita v. Lick. The action involved a 10 day trial, in which I succeeded in setting aside a will and transfer, prepared… Read more

Delusions and Testamentary Capacity

Delusions are often overlooked as a cause for lack of mental capacity. I was recently retained by a sister of a deceased person who advised that in her opinion, she had been disinherited from her late brother’s will as a result of his cocaine abuse…. Read more

Mental Capacity And Marriage

Mental Capacity And Marriage

The law is currently in error with respect to this area, stating that only a low level of capacity is required for marriage. I question in light of that, why about one quarter of lawyers earn their keep trying to get people out of the… Read more

The Doctrine of Suspicious Circumstances

The Doctrine of Suspicious Circumstances- From Laszlo v Lawton 2013 SCBC 305 [200] In Vout v. Hay, [1995] 2 S.C.R. 876 [Vouf\, the Supreme Court of Canada laid to rest the thread of confusion that had emerged in earlier decisions concerning the burden of proof… Read more