Leave to Appeal

The legal test for leave to appeal was restated in Ho Estate v. Ho 2016 BCCA 253 , upheld at 2016 BCCA 378, where the decision of one appeal judge was upheld by a panel when he refused leave to appeal on the basis that… Read more

Mandatory Injunctions – Harm Must Probably Occur

McLean v. Law Society of British Columbia 2016 BCCA 368 reviewed the law on injunctions and held that the court should only grant a mandatory injunctions when the harm complained of would probably occur.   [17]        Both declarations and injunctions, speaking as they do… Read more

S 151 WESA – Court Allows Applicant to Sue as Executor

Werner v. McLean 2016 BCSC 1510 granted relief under S 151 WESA that the applicant be authorized to bring court action in the name of and sue on behalf of the personal representative of the estate as executor.   The court approval was in order to… Read more

Pleadings

The Public Guardian and Tristee for BC v Johnston 2016 BCSC 1388 discusses the requirements of proper pleadings and when the Court may intervene to strike out , stay the proceedings, or amend the pleadings of a party. An application was brought under Rule 9-5… Read more

Adoption Purposes

Adoption is for all purposes. I advised a legal enquiry today that he could not claim aginst the estate of his natural father (birth  parent”) since he had been adopted by another party and that for estate claims, his adoption was for “all purposes”. Section 3 WESA re… Read more

Adding a Party to an Action

Stewart v. Stewart 2016 BCSC 1576 dealt with an application to adding a party to an action under  Rule 6-2(7)(b) and (c) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. The applicants were beneficiaries under two  trusts settled by the deceased. The total value of… Read more

Dysfunctional Families – Scapegoat Child Sues Parents and Wins

Scapegoat Child Sues Parents and Wins. I came across a case from 1994 where a 20 year old plaintiff who was abused, neglected and generally “scape- goated “throughout his childhood successfully sued his parents for their infliction of years of physical and mental abuse upon… Read more

What is a Discretionary Trust?

The BC Court of Appeal in Putzki v Saunders 2016 BCCA 344 examined the nature of a family property trust and discussed what is a discretionary trust. A discretionary trust is commonly used in estate planning often  when dealing with infants, disabled people on a government… Read more

Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust  discussed in Mac v Mak 2016 BCSC 1140. [122]     If the presumption of resulting trust arises, it may be rebutted by evidence of the transferor’s intention at the time of transfer to grant beneficial ownership to the recipient of… Read more

Claim Dismissed For No Standing

Re Tomlinson Estate 2016 BCSC 1223 dealt with a nephew contesting his aunt’s will when he was neither a named beneficiary under the will or an intestate heir had his claim dismissed for lack of standing. Standing is a pre-requisite to advancing claims regarding a… Read more

Interim Payments Under Wills Variation

Interim Payments Under Wills Variation Grant v Grant estate 1997 Carswell BC 3773 allowed a widow in need of funds to receive interim payments under the wills variation provisions of WESA. The Grant and Hecht cases are only a few reported cases of the ability to… Read more

Quantifying Special Costs and Contingency Fees

Norris v Burgess 2016 BCSC 1451 stated the law for quantifying special costs and then applied that amount towards the plaintiff’s contingency fees. Norris was an ICBC case where the judge in a Jury trial found fault on the insurer for the late production of… Read more

Settlement Offers and Court Costs

Norris v Burgess 2016 BCSC 1451 deals with settlement offers and court costs, that is how courts adjust cost upwards or downwards either in favour of one party or against the other party depending on the parties conduct and the terms of any formal offers… Read more

Removal of Executor

 Re Kolic Estate 2016 BCSC 1312 contains an excellent summary on the criteria for the removal of executor.   In Kolic the court ordered the removal of executor for basically choosing sides in the litigation concerning the very will that she was to remain impartial… Read more

Executor Can Be Liable For Unaccounted Expenses

Jackson v King 2003 BCSC 328 is a good decision on a passing of accounts and held inter alia that an executor is entitled to be indemnified expect for unaccounted or excessive expenses for which the executor can be held personally liable.   The Court… Read more