Independent Legal Advice and Undue Influence
June 26th | 2016
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
June 23rd | 2016
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
June 17th | 2016
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
June 11th | 2016
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
June 10th | 2016
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
June 10th | 2016
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
May 27th | 2016
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
May 11th | 2016
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
May 8th | 2016
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
May 7th | 2016
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
May 5th | 2016
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
April 25th | 2016
A joint tenancy of co owned property was severed by the signing of a trust agreement by one of the co owners held the BC Court of Appeal in Public Guardian BC v Mee 1972 WWR 424 . The respondent was the joint tenant with her former… Read more
Consolidation of Court Actions
April 22nd | 2016
It is not uncommon that two estate cases are commenced at the same time that relate to the same estate, and in such situations an order is often made for consolidation of the court actions or alternatively, that they be heard at the same time… Read more
Joint Venture Agreement
April 13th | 2016
Leontowicz Estate v Bakus 2016 BCSC 601 dealt with the validity of a trust relating to mining stakes where it was argued that the deceased had entered into a Joint Venture Agreement that must be based on whether or not there is a binding contract… Read more
Court Costs Summarized
April 8th | 2016
LeClair v Mibrella Inc. 2011 BCSC 533 summarized the law of court costs and it was recently re cited in Parmar Estate v Tiwari 2016 BCSC 540: costs represent an important instrument by which courts can either promote or, conversely, sanction given conduct. Rule 14-1(9)… Read more