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 Upheld By Highest Court

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

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 becomes circumstantial evidence and is admissible… 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

Registrar Says It Is Role of Courts to Interpret Documents

A Registrar declined to interpret documents on a  Passing of Accounts hearing in Lam v Daphne’s Fund ( Trustee of) 2015 BCSC 623, in effect stating that it was the role of the  Courts to construe underlying trust documents and not the Registrar.   Since the… Read more

Who Owns Found Money?

Who Owns Found Money? The basic and ancient principle of law that governs such situations where the finder of a chattel/Money acquires good title to it against all but the true owner or one enjoying a superior title   -Armory v Delamirie (1722) 1 Str.505 (… Read more

Funeral Costs Must Be Reasonable

Chernichan v. Chernichan Estate 2001 CarswellAlta 1730, 2001 ABQB 913, basically held that while funeral expenses are a top priority of the estate debts, the funeral costs themselves must be reasonable in relationship to the financial situation of the deceased, particularly where there is an… Read more

“Floodgates of Litigation” Held Specious

I discovered a 1992  court decision  debunking the theory of “floodgates of litigation “– a long time insurance industry alarm akin to the sky will fall, unless restrictions are put on various types of claims, usually through legislation or sometimes the courts, to limit the amount… Read more

Forcing Sale of a Jointly Owned Property

Co-owners of real property often find themselves in situations where one or more owners wish to or have to force a sale of jointly owned property, which is resisted by other co-owners. The courts generally speaking will grant an order forcing a sale of a… Read more

Court of Appeal Allows Courts to Interpret Trust Documents

Court of Appeal Allows Courts to Interpret Trust Documents   The almost chestnut re Engleman Estate 1986 23 ETR 30, BCCA, The will of the deceased made his two brothers co-executors and sole beneficiaries. A major asset of the estate was a farm on which… Read more

Probate Procedure When Four Wills In Dispute

Re Dow Estate 2015 BCSC 292 an issue of probate procedure arose  due to the fact that the deceased made four wills in the last 2 1/2 years of his life. The plaintiff was named as a beneficiary in the first and third wills, but not… Read more