revoke

Revocation of a Grant of Probate

The leading case in British Columbia on the revocation of a grant of probate is Desbiens v Smith Estate 2010 BCCA 394 . That decision was decided on the basis of improper service of the application for the grant of probate under what was then… Read more

Reconsideration

Reconsidering a Previous Court Order

The law relating to the reopening of a trial and the reconsideration of a previous court order is well settled. The court has a wide discretion, which should be exercised judicially, with caution and sparingly. The leading case in British Columbia to reopen the trial… Read more

Document Disclosure and Production | Disinherited Vancouver Litigation

Document Disclosure and Production

McLeod v Balakrishnan 2018 BCSC 908 reviews the law relating to document disclosure and production  in litigation. The case dealt with two applications, namely that the defendant provide a comprehensive list of documents, as well as an order that she produce documents requested of her… Read more

Encroachment of a Spousal Trust

Encroachment of a Spousal Trust

Toigo Estate 2018 BCSC 936 reviewed the law of the court’s jurisdiction to grant an order approving a resolution of the trustees discretionary power to encroach upon the capital of a spousal trust created by the deceased in favor of his wife. Pursuant to the… Read more

Adjournment of Trials | Disinherited Vancouver Litigation

Adjournment of Trials

The adjournment of a trial is a discretionary matter to the court, and the discretion must be exercised in accordance with the interests of justice, which in turn require a balancing of the interests of the parties. The facts of the application for an adjournment… Read more

Converting a Petition to an Action

Converting a Petition to an Action

Certain claims such as proving a will in solemn form must be brought by petition, and if the matter is to proceed, the petition must be converted to an action by way of a court order. In Kerfoot v Richter 2018 BCCA 238 the executor… Read more

Witness Immunity and Republication of Judgements

Witness Immunity and Republication of Judgements

I have on occasion received letters from parties involved in litigation that I have blogged about demanding that I remove the blog because of involving their name, however the law is clear that republication of a judgment without amendment or commentary that remains in force… Read more

Impeaching Witness Credibility

Impeaching Witness Credibility

The Supreme Court of Canada summarized the law relating to the impeachment of witness credibility in the rule in Browne v. Dunn in R.v Lyttle 2004 SCC 5 at paragraph 64: “The rule in Browne v Dunn requires counsel to give notice to those witnesses… Read more

Revoking a Grant of Probate

Revoking a Grant of Probate

Debsbiens v Smith Estate 2010 BCCA 392 discusses the concept of revoking a grant of probate, which typically involves one of two attacks, namely finding a defect in the process leading up to the grant of probate, such as failure to serve a beneficiary with… Read more

Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity. The court found that the testator who is aged… Read more

Enforcing Settlement Agreements

Probably most litigation lawyers have experienced the situation where a settlement is made on behalf of their client who then subsequently changes his or her mind. I have found this to have occurred on several occasions in recent years after a mediation of many hours… Read more

Proof In Solemn Form and Attestation Clauses

Proof In Solemn Form and Attestation Clauses

Bhall Estate 2017 BCSC 1867 involved a contested application to prove a will in solemn form where the court inter alia relied upon the presence of the attestation clause to be of some significance. The will was drafted by a lawyer who kept very few… Read more

Is a Will Valid By A Grant of Probate?

Is a Will Valid By A Grant of Probate?

Seepa v Seepa 2017 ONSC 5368 revisited the question of whether a will is recognized as valid by a grant of probate. The Court followed Neuberger v. York, 2016 ONCA 191: a. The court’s jurisdiction in probate is inquisitorial because the court’s decision does more… Read more

Common Law Spouse Expanded

Common Law Spouse Expanded

Connor estate 2017 BCSC 978 could be a bit of a game changer for common law WESA spouses in the sense that the court finding that the parties were spouses could be an “expansion” of the concept of common law spouse. Kent J found a… Read more

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

The duty of a lawyer/solicitor  in taking will instructions when suspicious circumstances are present was discussed in Shroff v Schroff 2017 MBQB 51. Suspicious Circumstances Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is… Read more