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Jerry Lewis and Wills Variation

In British Columbia, Jerry Lewis’s six disinherited children would have a wills variation claim under Section 60 of WESA. The news today reported: When comedian Jerry Lewis died from heart failure in August at the age of 91, as it turns out, he left the… Read more

Judicial Bias

Allegations of judicial bias occasionally make the news when a litigant asserts that the proposed  Judge is so biased that a fair trial cannot be obtained, and the Judge is asked to recuse him or herself. Bias is very different from a court finding a… Read more

What is a Discretionary Trust?

The BC Court of Appeal in Putzki v Saunders 2016 BCCA 344 examined the nature of a family property trust and discussed what is a discretionary trust. A discretionary trust is commonly used in estate planning often  when dealing with infants, disabled people on a government… Read more

Interim Payments Under Wills Variation

Interim Payments Under Wills Variation Grant v Grant estate 1997 Carswell BC 3773 allowed a widow in need of funds to receive interim payments under the wills variation provisions of WESA. The Grant and Hecht cases are only a few reported cases of the ability to… Read more

Mental Capacity Required to Marry and Separate Incorrect

The BC Court of Appeal was incorrect in finding that the mental test to marry and separate is a low one involving a “ simple” contract. As any of the legions of matrimonial lawyers will tell you, it may be easy to get into this… Read more

Severance of a Joint Tenancy

Zeligs Estate v Janes 2016 BCCA 280 contains an excellent review of the law relating to severance of a joint tenancy, thus converting it into a tenancy in common:   [45]        Like any owner, a joint tenant is entitled to deal freely with… Read more

Summary Trial In Court’s Discretion

Whether or not a case is suitable or not to be decided by way of a summary trial is a matter of the court’s discretion depending on an a number of factors. Cotter v Point Grey Golf and Country Club 2016 BCSC 10 summarized the… Read more

Promissory Estoppel Revisited

The BC Appeal Court in Cowper-Smith v Morgan 2016 BCCA 200 allowed an appeal in part to over turn the successful  the claim brought for promissory estoppel at trial by finding that the claim should not be allowed where a non owner of property gave assurances… Read more

Witness Credibility

Witness credibility is essential to winning at trial as if a Judge does not believe your client or the witnesses then you will most certainly lose the case. I have joked for years that the competing stories in estate dispute cases are so diverse that I… Read more

Value of Contribution

The Value of Contribution of a parties to the acquisition or improvement of  an asset does not have to be in money and can take  various individual forms as was discussed in Mac v Mak 2016 BCSC 1140. The Courts have to scrutinize the relationship… Read more

Joint Account Holders Are Fiduciaries

  MacKay v. MacKay Estate,2015 ONSC 7429, held that one joint account holder may serve as a fiduciary in relation to the other simply via the traditional indicia of such a relationship as set out in Frame v. Smith, [1987] 2 SCR 99 (i.e., the… Read more

Litigation Loans

The spiralling costs of litigation has led to an increasing number of litigants and lawyers  having to seek litigation loans to fund the court case. It is not unheard of for personal 9njury lawyers to have a million dollars in out of pocket disbursement a… Read more

Dysfunctional Families Produce Dysfunctional Adults

Dysfunctional Families Produce Dysfunctional Adults I mean no offence to anyone born into a dysfunctional family, but in my experience many of my clients are from such families and often carry many of the same attributes of dysfunction as a result. Understanding  the dynamics of… Read more

Loan or Gift?

In family environments it is often very difficult or near impossible for third parties such as a court to easily determine if that parental advancement of funds used to buy their child’s new family home was a loan or a gift.   From the parent’s… Read more

Breach of Trust

A breach of trust occurs when the trustee’s duty to act precisely within the terms of his obligations is not fulfilled.  If he fails in this, it is of no significance that he or she had no intention of departing from his duty. Trustees have been… Read more