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

S. 52 WESA-Undue Influence Presumption re Dependence

S. 52 WESA is a new provision that applies where a person establishes that a party was in a position where there was potential for dependence or domination of the will maker, and alleges that a gift in the will, resulted from the party using… Read more

Champerty No, Contingency Fee Yes

Champerty is defined in Black’s Law dictionary as “a bargain by a stranger with a party to a lawsuit, by which such third person undertakes to carry on the litigation at his or her own cost and risk, in consideration of receiving if successful, a… Read more

Everything to Fido

In the early 1990s I was consulted by executors of a deceased doctor who died without a spouse or children, and left her at that time large estate of $1 million to her two dogs and four cats in trust for their lives, and upon the death… Read more

Court Disallows Committee Gift

In Re Walsh 2015 BCSC 1992 the Court disallowed two gifts of $100,000 each to the children of a patient by her husband and court appointed committee. Her husband had been appointed such after Mrs. Walsh had been catastrophically injured in an accident.   The… Read more

Can Mediation be Mandatory?

Can Mediation be Mandatory? In British Columbia once one party to litigation serves  a Notice to Mediate on the other, it becomes mandatory for each party to the lawsuit to “engage in mediation”. Section 23 of the Regulation requires attendance of the parties at a… Read more

Mutual Will Severs Joint Tenancy

While mutual wills are rare, consideration should be given whenever reviewing them as to whether any prior property owned in joint tenancy has been severed by the execution of mutual wills. That was the situation in Szabo v. Boros 58 WWR 247, where joint tenants… Read more

Secret Relationship Found Non Marriage Like

Chowdhury v Argenti et al 2007 BCSC 1207 involved an unjust enrichment/wills variation  claim by a homosexual lover of 14 years with the deceased, that was dismissed on the basis that their relationship was entirely secret and they did not hold themselves out to the… Read more

Hoarding

Research shows that 5% of the population has a hoarding disorder characterized by the excessive acquisition of and an inability or extreme unwillingness to discard quantities of junk  or useless objects. Hoarding  goes well beyond any stretch of what might be considered “clutter”. What is… Read more

Boomers Don’t Want to “Retire”

I went to a course on retirement sponsored for lawyers, and found many of my classmates there, all having practised law for approximately 40 years and being in their mid-60s. In response to the speaker’s first question of who here wants to work forever, every… Read more

Trespass

  Most of the case law I have reviewed on damages for trespass to land usually, but not       always, involve the deliberate cutting or trees, or similar damage caused to your property by someone who had no legal right to do so.. The claim… Read more

Party Cannot Take Tax Benefit For One Purpose and Deny It For Another

In Rosenthal v Rosenthal, 1986 CarswellOnt 288 (HCJ), it was held that an individual cannot take a position to obtain a tax benefit and then deny that position to obtain a different benefit. At para 51 of Rosenthal, the court noted that “it is being… Read more

Forced Sale of Jointly Owned Property

Forced Sale of Jointly Owned Property In Mowat v Dudas 2012 BCSC 454, the court exercised its discretion to refuse an order for a forced-sale of the Cypress Gardens condo development of 177 units owned by 135 different owners. Each was a co-owner of the… Read more

Japanese Adoptions of Adult Males

Had I not read the following in the Economist I would not believe the practice of Japanese males adopting single male heirs when faced with  having only female heirs.   It would not surprise most North Americans to learn that 98% of adoptions there involve youngsters…. Read more