partition action

Who Can Bring a Partition Action

In order to be able to bring any  court action the claimant must have standing. Pallot v Douglas 2017 BCCA 254 is a court of appeal case setting out who has the standing to bring a partition action under the Partition of Property act. It… Read more

Undue Influence: Shifts in Burden of Proof Means More Plaintiffs Win

Undue influence is nearly always done in secrecy. It’s behind closed doors. There’s never many witnesses. It’s the things that are said like, I’m going to put you in a care home if you don’t leave anything to me. There are no witnesses but it… Read more

Using DNA in Vancouver Estate Litigation for Proof of Paternity

DNA in British Columbia estate litigation is widely used and it is readily accepted by the courts as proof of paternity in particular. The first time I used DNA was in approximately 1991 when somebody committed suicide off a ferry. Their body was never found. A… Read more

Partition of Property Orders

Partition of Property Orders in Joint Tenancy Agreements

Whether property be owned as tenants in common, or as joint tenants, if the parties cannot agree on the sale of the property, the BC Court has the power to do so under the provisions of the Partition of Property Act RSBC. This blog sets… 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

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

Suspicious Circumstances

Arauju v Neto 2001 BCSC 935 is an undue influence /lack of capacity case that discusses suspicious circumstances.   The court found that due to suspicious circumstances the will maker was not allowed to rely upon the presumption that he was mentally capable when the… Read more

Section 58 WESA: Journal Not a Will

Section 58 WESA: Journal Not a Will

Re Hadley Estate 2016 BCSC 765 held that an unwitnessed  journal entry written by the deceased in her daily entry and stated to be  ” my last will”  will, was not in fact her last valid will under the curative provisions of section 58 WESA. The… Read more

Adverse Possession

Adverse Possession

Mowaqtt v BC Attorney general 2016 BCCA 113 dealt with a long established principle of  adverse possession  relating to  squatters long time  use of  property that had escheated to the crown .  A claim of squatters to  legal entitlement to a parcel of property  occasionally occurs… Read more

The Usual Rules For Costs In Trusts

The Usual  Rules For Costs In Trusts In matters of trust administration, the “usual rule” is for the court to award special costs to all parties, payable out of the estate or trust: Collett Estate, Re, 2005 BCCA 291 (B.C. C.A.), at paras. 5-6, Miles v…. Read more

Removing Certificates of Pending Litigation (CPL’s)

Jacobs v Yehia 2015 BCSC 267 contains an excellent summary on the law removing certificates of pending litigation. Such a document is typically filed by a plaintiff who claims an interest in the lands in question, and the certificate is notice to the world under… Read more

Security For Costs

An application for security for court costs may occur in case one party here in BC  has a strong case  and may win, while  the other party typically is out of the jurisdiction, or lacks assets to pay costs if he/she/it loses the case.   Sunshine… Read more

Estoppel By Convention

Estoppel By Convention. The Supreme Court of Canada has set out the criteria as to what establishes estoppel by convention in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53. In paragraphs 53 and 54, the Court sets out how the forms of estoppel… Read more

Mutual Release

At the end of each court case, the lawyers generally have each party sign a Mutual release that in layman’s terms means they will never sue each other for the same matter again, it being a final settlement. The mutual release signed by the parties… Read more