Leave to Appeal

Leave to Appeal

The legal test for leave to appeal was restated in Ho Estate v. Ho 2016 BCCA 253 , upheld at 2016 BCCA 378, where the decision of one appeal judge was upheld by a panel when he refused leave to appeal on the basis that… Read more

Entered Court Orders

Entered Court Orders

The Court does not have jurisdiction  to re open entered court orders but may vary the order where has been a change of circumstance. The court refused to re open or vary an entered court order in Sugrim v Sugrim 2016 BCSC 1644 when after entering… Read more

Civil Conspiracy

Civil Conspiracy

Klaus v. Hamilton, 2015 BCSC 2386 involved a claimant who sued alleging he was a spouse of the deceased, for a variance of her will and for damages for civil conspiracy for alleging he was not a spouse. The tort of civil conspiracy has two branches (Cement… Read more

Mandatory Injunctions: Harm Must Probably Occur

Mandatory Injunctions: Harm Must Probably Occur

McLean v. Law Society of British Columbia 2016 BCCA 368 reviewed the law on injunctions and held that the court should only grant a mandatory injunctions when the harm complained of would probably occur.   [17]        Both declarations and injunctions, speaking as they do… Read more

Deceased Assets Vest In Executor

Deceased Assets Vest In Executor

A deceased person’s assets vest in his or her executor or administrator after death. If an executor is removed or renounces the new executor/trustee then holds the assets in trust as they now vest with the new executor/trustee. Browne v Browne Estate 2015 BCSC 28,… Read more

Pleadings

Pleadings

The Public Guardian and Tristee for BC v Johnston 2016 BCSC 1388 discusses the requirements of proper pleadings and when the Court may intervene to strike out, stay the proceedings, or amend the pleadings of a party. An application was brought under Rule 9-5 (1)… Read more

What Is a Trust?

What Is a Trust?

Society of Notaries Public Bc v The Law Society BC 2016 BCSC 1558 provides a definition of what is a trust that has been approved by innumerable courts. What Is a Trust? In Waters’ Law of Trusts in Canada (4th ed. Waters, Gillen and Smith,… Read more

Severance of Court Actions

Severance of Court actions joined together may occur in civil litigation.   The Public Guardian and Trustee for BC v Johnston 2016 BCSC 1388 has an excellent review of the law as to when the courts will order that court actions be severed from the… Read more

Court Pleadings

Court pleadings must briefly limit the issues of fact and law with certain clarity so as to give the opposing party sufficient notice of the case to be met at trial. The law relating to pleadings was reviewed in the Public Guardian and Trustee BC… Read more

Standing In Public Interest Concerns

Standing In Public. The issue of public interest concerns standing, being the capacity through proper connection  to bring a court action, was canvassed in Trial Lawyers of BC v BC Attorney general 2016 BCSC 1391 by Hinkson CJBC:   [8] The defendants assert that the… Read more

Unconscionable

In the course of a complex almost month long matrimonial trial, the argument was raised with respect to the marriage agreement that it was unconscionable in its terms. The court concluded that it was not unconscionable. S. ( H.S.) v D. ( S.H.) 2016 BCSC… Read more

Special Costs Not to Include Pre Litigation Conduct

Abuse of Process in BC Estate Litigation

Many estate litigation claims and counterclaims contain far too much emotional distortion so as to become frivolous, vexatious, unnecessary and otherwise an abuse of process that upon application, may lead to those portions of the claim found to be such to be stricken or dismissed entirely…. Read more

Statutory Presumption of Indefeasible title

British Columbia with its Torrens land title system as a statutory Presumption of Indefeasible Title that can be rebutted by  a resulting trust .   The following extract is taken from Mac v Mak 2016 BCSC 1140:   [107]     The starting point is the presumption… Read more

Legal Research Taxable Disbursement

Legal Research was allowed to be a taxable disbursement by the Court of Appeal . BCCA Registrar Confirms That On Point is “Far More Than Simply Legal Research” ( This blog is thanks to Onpoint Legal Research who I have happily used for over ten… Read more

Hearsay Evidence – The Principled Approach

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