What to Expect as an Executor of Estate in BC

What to Expect as an Executor of Estate in BC

Everything to Know About Being An Executor It is perhaps trite to state that the role of the drafting notary or solicitor is simply not to fill in the blanks and record the testator’s instructions, including his or her choice of executor, but instead to… Read more

Power of Attorney Creates a Fiduciary

Power of Attorney Creates a Fiduciary

Attorney Using a Power of Attorney is a Fiduciary As a fiduciary, an attorney for property is “ obliged to act only for the benefit of the donor,  putting his/her own interests aside”. An attorney is prohibited from using the power of their own benefit,… Read more

6 Factors of a Fiduciary Relationship

6 Factors of a Fiduciary Relationship

Six factors must exist to create an ad hoc fiduciary duty as per the Supreme Court of Canada in Elder Advocates of Alberta Society v. Alberta, [2011] 2 S.C.R. 261, at paras. 27 and 36. 6 Factors for Fiduciary Relationships: (1) the fiduciary has scope for… Read more

Trustee Cannot Be in Conflict With Duty

Trustee Cannot Be in Conflict With Duty

Equity will not allow a person who is in a position of trust to carry out a transaction where there is a conflict between his or her duty and his or her interest. It is a rule of universal application that no trustee shall be… Read more

Obligations of a Power of Attorney

Obligations of a Power of Attorney

The Manitoba Supreme Court in Krawchuk v Krawchuk 2017 MBQB 47 outlined the legal obligations  of a power of attorney. Manitoba’s laws for powers of attorneys are essentially the same as for British Columbia. The Court stated inter alia as follows: 18      The applicable law with… Read more

Statute Barred Debt to Estate Deducted From Beneficiary

Statute Barred Debt to Estate Deducted From Beneficiary

Re Johnston Estate 2017 BCSC 272 upheld the rule in Cherry v. Boultbee  which provides that where a legatee of a share of the residue is a debtor of the estate, he or she is not entitled to receive his or her legacy without bringing… Read more

Relationship Between Parent and Child Is Fiduciary

Relationship Between Parent and Child Is Fiduciary

A (LS) v A. ( WH) Estate 2014 BCSC  1910  (Antrobus v Antrobus) discusses that the relationship of parent and child is fiduciary in nature, and that parents have an obligation to care for, protect and rear their children . This line of authority was also… Read more

Joint Bank Holder Not Liable For Breach of Fiduciary Duty

Joint Bank Holder Not Liable For Breach of Fiduciary Duty

No specific terms of payment were ever agreed between the parties and the defendant was paid the sum of $37,850 over approximately 5 years. No evidence of mental incapacity was led at trial, although the deceased estate did become incompetent at some point during those… Read more

Proper Estate Expenses

Proper Estate Expenses

Re Vince Insurance Trust 2016 BCSC 1992 reviewed the law as to what constitutes proper estate expenses such that the executor would be entitled to be reimbursed for same. It is a question of fact in each case. The application for the interim distribution was… Read more

What is a Discretionary Trust?

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

Executor/Trustees Fees

Executor/Trustees Fees

Zadra v Cortese 2016 BCSC 390 dealt with a passing of executor’s accounts before a registrar to determine the amount of executor/trustees fees for handling a complex estate for ten years but delegating most of the work to professionals. The value of the estate increased… Read more

Court Termination of Representation Agreements

Court Termination of Representation Agreements

Baker-McGrotty v Baker 2016 BCSC 699 discuss when the court will exercise its discretion to NOT terminate representation agreements after the appointment of a committee under the Patients Property Act. 26 Section 19 of the Patients Property act provides as follows: 19 On a person… Read more

Promissory Estoppel Revisited

Proprietary Estoppel

NOTE:   This Court of Appeal Decision was over turned by the Supreme Court of Canada 2017 SCC 61 and the claim was allowed   See blog entry dated  February 2,2018   The BC Appeal Court in Cowper-Smith v Morgan 2016 BCCA 200 allowed an… Read more

Joint Account Holders Are Fiduciaries

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 ability… Read more

Liability of Trustees

Liability of Trustees

Daum v Clapci  2016 BCCA 176 recently discussed the liability of a trustee for failing to properly insure a hotel that burned  stating inter alia. The test for liability is essentially one of honesty and reasonable man prudence in administering the estate affairs as if… Read more