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

Document Production Litigation

Document production in litigation in BC is now under the new rules in effect since 2010 to initially only producing documents necessary to prove a material fact. The new rule for production of documents was discussed in Biehl v Strang 2010 BCSC 1391 Rule 7-1(1)… Read more

Setting Aside a Default Judgement

Miracle Foods v. D&H Enterprises Ltd.  1979] B.C.J. No. 1965, 10 B.C.L.R. P 58. Establishes a four part test for setting aside a default judgement. A default judgement is obtained when the plaintiff properly serves a defendant with a Petition or a Notice of Claim… Read more

Adverse Inference

Bronson v Hewitt 2010 BCSC 169 reviewed the law of adverse inference, which probably is not utilized as much by counsel as they could. It typically arises when a key witness who would normally be expected to testify, does not. Adverse Inference [323] The plaintiffs… Read more

Section 58 WESA – Journal Not a Will

Re Hadley Estate 2016 BCSC 765 held that an unwitnessed  journal entry written by the deceased in her daily entry and stated to be  ” my last will”  will, was not in fact her last valid will under the curative provisions of section 58 WESA. The… Read more

Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predecaesing, any of which results in   disappointed beneficiaries not receiving the intended gift.   Instead… Read more

The Bogus Expert

A bogus expert was recently discussed in a sexual assault appeal,  JP v BG 2016 BCCA 91 , when the Court labelled a bogus expert report as a” fraud on the court”. The so called expert was in fact a recipient of a “diploma mill” and… Read more

Joint Tenancy Severed By Trust

  A  joint tenancy of co owed property was severed by the signing of a trust agreement by one of the co owers held the BC Curt of Appeal in  Public Guardian BC v Mee 1972 WWR 424 .   The respondent was the joint tenant with… Read more