The Differences Between Joint Bank Account and Joint Property
January 10th | 2015
There are some particular features of a joint bank account that distinguish it from a joint tenancy in real property and these have been discussed by our Court of Appeal (Bergen v. Bergen, 2013 BCCA 492): ( see my blog on Bergen dated August 26.14… Read more
Courts Scrutinize Claims Against Estates
January 8th | 2015
Claims Against Estates To Be Scrutinized Miller v Miller ( 1987) 14 BCLR (2d) 42 at pa 451, and approved by other cases such as Friak v Pilon 2012 BCSC 528 state that claims against deceased persons must be approached by the courts ”… Read more
Disinherited.Com Likes Contingency Fee Cases
December 7th | 2014
A contingency fee basis agreement is a fee arrangement between a lawyer and client were typically the lawyer only receives a fee from the successful monies collected from a court action, with the usual motto being” no collection, no fees”. Such an arrangement is… Read more
Appeal Test For Reviewing Trials By Affidavit (Summary Trial)
December 5th | 2014
Appeal Test For Reviewing a Summary trial Lorintt v Boda 2014 BCCA 354 deals inter alia with the appeal test, the court uses when reviewing a trial where no oral evidence was give, but instead it was a summary trial based on affidavits. One… Read more
Removal of a Notice of Intention to Dispute Under WESA
November 26th | 2014
Re Richardson Estate 2014 BCSC 2162 also dealt with the new WESA rules relating to the removal of a Notice of Intention to Dispute ( the former probate caveat), finding that the test is whether it is in the best interests of the estate to… Read more
Wills Variation and Resulting Trust Claims May Be Tried Together
November 25th | 2014
For over 30 years I have pleaded Wills Variation claims together with Resulting Trust claims in the same case, only to be told by various defence counsel that the pleadings cannot be tried together at the same time. When challenged, no one has ever… Read more
Party v Party Court Costs
November 5th | 2014
Party v Party Court Costs Semenoff Estate v Bridgeman 2014 BCSC 1845 involves the Court’s approach to assessing costs against a plaintiff who acted for himself personally in a nine day trial that was dismissed with costs for part of the trial and double costs… Read more
The Standard of Review By Appeal Courts of Lower Court’s Decisions
November 3rd | 2014
The BCCA in Re Korol 2014 BCCA 380 recently examined the standard of review of an appellate court of a lower court’s decision in light of the following SCC case of Penner v Niagara Regional An Appeal Court’s standard of review of discretionary decisions… Read more
Certificates of Pending Litigation (CPL’s) To Tie Up land
October 22nd | 2014
Certificates of Pending Litigation REPRINTED FROM CARSWELLS NOTES AND RELATING TO ONTARIO LAW ( SIMILAR BUT NOT IDENTICAL TO BC LAW) “Certificates of pending litigation (or lis pendens) (“CPL”) are often-used tool in order to preserve real property and unregistered interests in such property. The test… Read more
Appeal Court Allows Trusts to Be Interpreted re Their Meaning
October 18th | 2014
BC Appeal Court have jurisdiction to construe a Trust Deed. See Donovan W.M. Waters, Mark R. Gillen and Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th Ed. (Toronto: Thompson Reuters, 2012) at 1165-66. See also Engelman v. Engelman (1986), 23 E.T.R. 30 (B.C.C.A.) at… Read more
Executor’s Obligation to Disclose Documents In Estate Litigation
October 17th | 2014
Executor’s Obligation to Disclose Documents In Estate Litigation Wang v Christie Estate 2014 BCSC 1574 confirms and discusses what I would have considered to be trite law in that once an executor named as a respondent in a civil wills variation claim is served… Read more
Court Determines Rights Between Two Competing Powers of Attorney Spouse vs Daughter
October 15th | 2014
Powers of Attorney Spouse vs Daughter Sommerville v Sommerville 2014 BCSC 1848 involved a court application wherein the deceased gave both his surviving widow and his daughter separate powers of attorney that could be used individually. The facts are somewhat complicated given that the… Read more
Son May Not Inherit For Murdering Mother
August 19th | 2014
Re Fenotti Estate 2014 BCSC 1533 reviewed the law and held that a murderer of the deceased, his mother, son may not inherit from her as a result of public policy that prevents a wrong doer from benefiting from his or her own crime. The personal… Read more
The Meaning of “All Remaining Cash” In a Will
July 16th | 2014
Jones v BC Public Trustee (1982) 5 WWR 543, dealt with the interpretation of the words ” all remaining cash after expenses” in the deceased’s will. The deceased left a home made will, where after several specific bequests, he provided that ” all remaining cash… Read more
Bequest to Non Existent Charity Saved By Cy-Pres Doctrine
June 22nd | 2014
In Re McGregor Estate 2014 BCSC 896, the deceased left a bequest to “Auxiliary to Woodlands”, a charitable organization that no longer existed at the time of death, but was saved from lapsing as a bequest of the estate by the application of the… Read more