Notice to Dispute: Understanding the Rules

Notice to Dispute: Understanding the Rules

A party wishing to contest the issuance of a grant of probate or administration may file a Notice to Dispute under Rule 25 (10) of the Supreme Court Rules. While a notice to dispute is in effect, the registrar must not issue an estate grant…. Read more

Removal of Executor/Trustee For Conflict of Interest

Removal of Executor/Trustee For Conflict of Interest

As a BC estate lawyer, I am often asked to remove an executor/trustee. Re Ching 2016 BCSC 1111 is one of several cases where the courts have indicated their reluctance to remove an executor for a perceived conflict of interest. The executor/trustee was however removed… Read more

Release of Claims and Different Claim

Release of Claims and Different Claim

Bykerk v Kappalka Estate 2017 BCSC 655 discussed a previous Release of Claims signed by the parties to a second court action under the Wills Variation act (Section 60 WESA) and found that the Release was not binding to prevent the latter claim. The court… Read more

Hearsay Evidence In Vancouver Estate Disputes

Hearsay Evidence In Vancouver Estate Disputes

Hearsay evidence is very common in Vancouver estate disputes and generally speaking is allowed by the courts subject to a few principled rules so long as it is not relied upon for “the truth of its contents”. Hearsay evidence was discussed in Horton v Bruce… Read more

Use of Multiple Wills Approved

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 a will maker… Read more

Gift to Witness to Will Cured By S 43 WESA

Gift to Witness to Will Cured By S 43 WESA

Bach Estate 2017 BCSC 548  cured a gift to witness to will to be valid   when prior to WESA  on March 31, 2014 it would  have been invalid. One of the witnesses to the will was the husband of the deceased and a beneficiary under her… Read more

Pleading the Tort of Conspiracy

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 property… Read more

Joint Tenancy Severed By Conduct

Joint Tenancy Severed By Conduct

Joint Tenancy Severed By Conduct Lescano v Unlu 2016 BCSC 1535 is a case exemplifying how conduct of joint tenants that is inconsistent with joint tenancy can have the legal effect of severing the joint tenancy into a tenancy in common. The court found that… Read more

Severance of a Joint Tenancy

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 his… 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

Gratuitous Land Transfer Is a Trust

Gratuitous Land Transfer is a Trust

McKendry v McKendry 2015 BCSC 2433 dealt with a very common fact pattern in estate disputes- where a parent puts the property in joint names with one child and excludes the other children, thus disinheriting them. In McKendy the transfer was held to be a… Read more

Judgement Does Not Sever Joint Tenancy

Will Drafters File Privileged In Wills Variation Claims

In an unreported decision, Brown v Terins et al, 20150505, Madam Justice Fisher refused an application brought by the plaintiffs in a wills variation action for access to the will drafters file so as to determine inter alia, the reasons for the disinheritance, so as… Read more

The Factors To Determine an Executor’s Compensation

In the well-known case of Re Toronto General Trusts and Central Ontario Railway (1905), 6 O.W.R. 350 (H.C.), five central factors should be considered by the audit judge in arriving at the amount of an executor’s compensation. The maximum fee for obtaining probate and distributing… 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

The Prudent Investment Standard For Trustees

The Prudent Investment Standard For Trustees

Miles v Vince 2014 BCCA 290 allowed an appeal and removed a  trustee for failure to abide by the Prudent Investor Standard expected of a trustee. The Trustee had used the funds from an insurance trust for a speculative real estate investment The Prudent Investor… Read more