Will Interpretation Law

Dunn v TD Canada Trust 2016 BCSC 270 was a Rule 9-7 application to determine the words directing the trustee  to retain in the form in which they are at the time of my death all investments in bonds and stocks which they had done… Read more

Discovery On Credibility Not Allowed

The issue of credibility in estate litigation is often raised as the stories between the conflicting parties are often so different that they are hard to reconcile in any way.   One of such credibility issues that sometimes occurs is the opposing counsel asking if… Read more

Wills Variation and Discretion

One of the difficulties in advising clients in wills variation cases is that under the WESA provisions relating to the variance of wills, the trial judge has an absolute discretion in his or her award, if any, under the act. The five panel appeal decision… Read more

Public Policy Voids Homophobic Will

An Ontario judge in Royal trust Corp. of Canada v The University of Western Ontario et al 2016 ONSC 1143 has struck down a deceased doctor Priebe’s  attempt to set up university scholarships exclusively for white, single and heterosexual students, ruling the unusual stipulations clash… Read more

Enforcing Foreign Judgements

Ace Life Insurance Co. v Li 2015 BCSC 2533 held that a judgement against the defendant for $100,000 in Hong Kong as the personal representative of her late husband’s estate for court costs as the losing party in an action she brought on behalf of… Read more

Spousal Separation Needs Intention

Spousal Separation It is often difficult for third parties to know if a spousal couple has “legally” separated or not and a sudden death will invariably lead to litigation over the issue. The Courts have established in Manitoba, and I believe it would be followed… Read more

Will Witnesses No Longer Required

WILL WITNESSES NO LONGER REQUIRED   For my first 40 years of practice, and for time immemorial before , there were strict requirements for the execution of a will – a failure thereof could result in an invalid or partially invalid will. That all changed… Read more

Wills Interpretation Guidelines

Eberwein Estate v. Saleem, 2012 BCSC 250 (B.C. S.C.), the executor sought advice and direction from the court regarding bequests in a Will which were unclear, and the court set out the general guidelines for wills interpretation.   [30] Courts are greatly suspicious of attempts… Read more

Incorporation By Reference

Incorporation by reference typically occurs when a trust company is appointed executor and the deceased’s will makes reference to a certain fee agreement entered into between the then client and the trust company to retain their services as executor/trustee and to pay a  fee schedule…. Read more

Missing Heirs

People, including heirs, go missing for all sorts of reasons all the time. This of course presents a problem to an executor who must serve all heirs under the will, and anyone who would inherit on an intestacy, along with a copy of any application for probate… Read more

Solicitor Client Privilege and the Will File

Solicitor client privilege and the will file can often end up in a tug of war between the executor upholding a claim of privilege after the death of the estate deceased, and beneficiaries who want to see the lawyers notes and other file contents of… Read more

Christina and Capi-05

Pet Trusts

Pet Trusts Today’s news mentioned that a deceased left $100,000 to care for her 12 parrots. At first blush this may seem unreasonable, but given that her wealth was in excess of 5 1/2 million dollars, and the long life expectancy of parrots, this may… Read more

Admissibility of Out of Court Statements

Admissibility of Out of Court Statements Documents such as diaries, notes, letters and various statements made by witnesses out-of-court, are normally not admissible by reason of hearsay, but may be admissible if adduced for a purpose other than proof of its contents, when it then… Read more

Executor Court Actions Before Probate

Executor Court Actions Before Probate The law seems to be clear that an executor can bring an action in his or her capacity as executor before probate is granted but cannot obtain judgment in the action without probate having been granted:  see Chetdy v. Chetdy,… Read more

Proof of Will In Solemn Form vs. Common Form

When the validity of a will is in question, the propoundor of the will is often forced to prove the validity of the will in solemn form, by commencing a court action and having a judge determine the wills validity, as opposed to a non… Read more