multiple wills

Use of Multiple Wills Approved

  In re Berkner Estate 2017 BCSC 619 the Court approved the use  of Multiple Wills in estate planning .    The applicant submits that a person is entitled to have more than one valid will. As an example, multiple wills may be used when… Read more

gratuitous

Gratuitous Agency

Agency can simply be defined as a person authorized by another to act for him or her with entrusted business, and the agent represents that the agent is acting for another under the contract of the relation of agency. The  case of Siemans v Howard… Read more

Spoliation of Evidence

Spoliation of evidence is the intentional destruction of relevant evidence when litigation exists or is pending. There are few cases on the issue in Canada but it does occur on occasion.   In Holland ( Guardian ad litem) v Marshall 2008 BCCA 468 the appeal… Read more

Security For Costs of Trial and Appeal

Arbutus Bay Estates Ltd v Canada ( A-G) 2017 BCCA 133 dealt with the law for security for costs for both an appeal as well as  trial that lasted 18 days and was appealed. Security for costs was awarded in the amount of $50,000 for… Read more

Stay of Proceedings

Gerritse v Hospital For Sick Children 2017 ONSC 1859 dealt with an application for a stay of proceedings in one court case until the paternity issue in another case was firstly decided. The Court refused the application and cited the law as previously set out in… Read more

Shutting Down the Frivolous Vexatious Litigant

Canada v. Olumide 2017 FCA 42 set out a road map on how to rid the court’s back log of the frivolous and vexatious litigant, albeit with ” dignity and respect.” The Federal Court relied upon s 40 of the Federal Court act but most… Read more

Court May Hear Additional Evidence Before Entry of Order

Clayton v British American Securities Ltd ( 1934) 3 WWR 257 ( BCCA) upheld  the discretionary  power of a trial judge to hear additional evidence after judgement was pronounced but before the order was entered .   At the close of a trial judgment was reserved and after… Read more

Parens Patriae Jurisdiction of the Courts

Re Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs. The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection of… Read more

Change of Venue of Trial

Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city.   The defendants in Harder sought an order transferring the proceedings  from Victoria to the… Read more

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Wolverton Securities Ltd v Schemel 2009 BCSC 1048 discusses the concepts of res judicata, cause of action estoppel and merger in judgement and states that the concepts are often used interchangeably in various judgments.   The concepts essentially bar a litigant from suing a second… Read more

Civil Fraud

The tort of civil fraud (as opposed to criminal fraud)  was reviewed by the Supreme Court of Canada in Bruno Appliance and Furniture Inc. v Hyrniak 2014 SCC 8  and concluded there are four elements . 18      The classic statement of the elements of civil… Read more

Pleading the Tort of Conspiracy

It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court  pleading of the tort of conspiracy.   For example, I recently had a situation where the executor attempted to sell the… Read more

The Principles of Interpreting Contracts

Dusanjh v Wright Estate 2017 BCSC 340 sets out the law relating to interpreting contracts when there is an ambiguity as to it’s meaning.   The children of the deceased brought a petition that argued the deceased had established a trust in their favour and the… Read more

Striking Out a Court Pleading

A court pleading may be struck out by the Court pursuant to Rule 9-5 ( 1) which states: 1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of pleading, petition or other document… Read more

Misfeasance of Public Officials

It occasionally occurs in estate litigation that a party has complaints about the misfeasance of  public officials, (usually  against the Public Guardian and Trustee), as a result of perceived deliberate  unlawful actions on the part of the public official against the complainant . The tort… Read more