Severance of Court Actions

Severance of Court actions joined together may occur in civil litigation.   The Public Guardian and Trustee for BC v Johnston 2016 BCSC 1388 has an excellent review of the law as to when the courts will order that court actions be severed from the… Read more

Court Pleadings

Court pleadings must briefly limit the issues of fact and law with certain clarity so as to give the opposing party sufficient notice of the case to be met at trial. The law relating to pleadings was reviewed in the Public Guardian and Trustee BC… Read more

Standing In Public Interest Concerns

Standing In Public. The issue of public interest concerns standing, being the capacity through proper connection  to bring a court action, was canvassed in Trial Lawyers of BC v BC Attorney general 2016 BCSC 1391 by Hinkson CJBC:   [8] The defendants assert that the… Read more

Summary Trial In Court’s Discretion

Whether or not a case is suitable or not to be decided by way of a summary trial is a matter of the court’s discretion depending on an a number of factors. Cotter v Point Grey Golf and Country Club 2016 BCSC 10 summarized the… Read more

Promissory Estoppel Revisited

The BC Appeal Court in Cowper-Smith v Morgan 2016 BCCA 200 allowed an appeal in part to over turn the successful  the claim brought for promissory estoppel at trial by finding that the claim should not be allowed where a non owner of property gave assurances… Read more

Witness Credibility

Witness credibility is essential to winning at trial as if a Judge does not believe your client or the witnesses then you will most certainly lose the case. I have joked for years that the competing stories in estate dispute cases are so diverse that I… Read more

Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust was 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… Read more

Abuse of Process

Many estate litigation claims and counterclaims contain far too much emotional distortion so as to become frivolous, vexatious, unnecessary and otherwise an abuse of process that upon application, may lead to those portions of the claim found to be such to be stricken or dismissed entirely…. Read more

Mutual Wills Create Constructive Trusts

Mutual Wills Create Constructive Trusts Mutual wills  as opposed to mirror wills, are not very common, but when they exist and  breached, that breach creates a trust that can be used to trace the assets into the hands of third parties. Mutual wills are not… Read more

Interpretation of Court Orders

Interpretation of Court Orders occasionally arises in estate litigation where poorly drafted previous orders may require subsequent interpretation. Basically it is the same basic law as interpreting a contract. In Athwal v. Black Top Cabs Ltd., 2012 BCCA 107 (B.C. C.A.) [ the Court of… Read more

Independent Legal Advice and Undue Influence

Under normal circumstances independent legal advice, if properly given should be sufficient to rebut any presumption of undue influence, but that was not the case in Cowper-Smith v Morgan 2016 BCCA 200 where the Court of Appeal upheld the trial judge in finding inter alia… Read more

Hearsay Evidence – The Principled Approach

The Courts have generally in recent years allowed the introduction of hearsay evidence stating that it should be done so under a principled approach. It is a fact that most estate disputes when litigated often refer to statements from the grave and what was stated… Read more

Hostile Adverse Witnesses

Jimmy Page of Led Zeppelin fame was called as a hostile adverse witness by the opposing counsel in the opening alleged plagiarism of “Stairway to Heaven” trial.  Rule 12-5 (19) describes an adverse witness aka hostile witness as a “party who is adverse in interest”…. Read more

Expert witnesses

Expert witnesses Once an expert becomes a witness, the expert is then presented to the court as truthful, reliable, knowledgeable and qualified. Rule 11-2(1) makes it clear that an expert has a duty to assist the court and is not to be an advocate for… Read more

Witness Memory Difficulties and Expert Evidence

Witnesses in general on occasion have memory difficulties but where the memory is so lacking as to be unreliable, expert evidence may be admissable to show that a witness suffers from a mental disability which affects his or her ability to testify reliably. The admissible evidence… Read more