Limitations Act -June 1.13

BC Limitations Act It is essential that each specific type of court action be brought within the time limits set by the statute of limitations, or the perspective claimant is “out of time”and barred from doing so. There are a number of substantial changes being… Read more

Equity Demands “Clean Hands”

Equity  demands  “clean hands”  or it will not be exercised. Wachter v Carlson 2012 BCSC 1390 is a good example of the horrendous legal predicament elderly couple can find themselves in by entering into well intentioned, but poorly thought out, and not legally prepared, arrangements… Read more

Court Prefers Lawyers Opinion Over Doctor’s On Mental Capacity

  Moore v Drummond BCSC 1702 is not the first decision where the evidence of the lawyer who  prepared a will  is preferred over that of a family doctor, on the issue of whether or not a deceased  had mental capacity to prepare a will. One… Read more

The Doctrine of Fraudulent Concealment Postpones a Limitation Period

The doctrine of fraudulent concealment  . . .  was succinctly articulated by Justice Dickson (as he then was) in Guerin v. Canada, [1984] 2 S.C.R. 335 at 390, 13 D.LR. (4th) 321: . . .  The fraudulent concealment necessary [to postpone a limitation period] need not amount to deceit… Read more

“Proprietary Estoppel” Can Be Used as a Cause of Action

The following extensive quote relating to the law of Proprietary Estoppel has been excerpted from the reason for judgement of Cowderoy v Sorkos Estate, 77 ETR (3d) 246, which was briefly blogged about on February 7.13 on this website.    P  68  “The modern doctrine… Read more

Claim For Property Promised Years Before Upheld

A Claim For Interest In Property Verbally Promised Years Before, Was Upheld By Court As  An Agreement Verbal promises to provide property years in the future, in return for services  for the life of the promissor, are increasingly common in estate litigation. Such arrangements, usually… Read more

Parol Evidence Rule Not Permitted To Be Instrument of Fraud

“Parol evidence”‘ that is verbal evidence to show that the written contract was not the true contract,  admitted to prevent a fraud upon a trust. The BC Court of Appeal upheld the finding of a trust in the decision Bradshaw v Stenner 2012 CarswellOnt 1936… Read more

No Punitive or Aggravated Damages In Wrongful Death Claims

No Punitive or Aggravated Damages In Wrongful Death Claims Glenn v Seair Seaplanes and others, 2012 BCSC 1726  arises from a seaplane crash in November  2009. The action has been brought against the owner and operator of the seaplane, Seair Seaplanes Ltd. and the pilot, Francois… Read more

Ontario Court Upholds Award Against Losing Party of Over $700,000 in Costs For Frivilous Action

Costs For Frivilous Action The recent Ontario decision involving Smith Estate v Rotstein 2012 CarswellOnt 9064, provides a detailed examination of recent awards for court costs involving lengthy but frivolous action estate litigation fights. Here a sibling engaged in lengthy and complex litigation alledging undue… Read more

Court Inherent Jurisdiction to Protect Those Who Need Protection

 Supreme Court Inherent Jurisdiction to Protect Those Who Cannot Protect Themselves Referring  again to the Kenny Ng case, the wife as committee for the person of Kenny, had decided after seven years of him being in a coma,to remove his life support system. His family applied… Read more

Adverse Inference For Failure to Call Certain Evidence

There are certain cases where it is simply necessary and expected to call a particular witness who might have extensive knowledge as to the facts in question, and failing to do so, will lead the court to draw an adverse inference as to what that… Read more

Interim Injunctions

Interim Injunctions Black’s law dictionary defines “injunction” as a “court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury”. In the Ng life support application blogged about yesterday, the patient’s family applied to the court for an… Read more

Administrator Appointed Pending Litigation

Independent Administrator Appointed For  Estate Assets Pending Litigation, aka administrator pendent lite. A common feature of many estate  disputes  is the acrimonious nature between the various claimants to the assets of the deceased. In fact, certain cases become renowned within the profession and the courts… Read more

Production of Previous Wills File Refused Due to Solicitor Client Privilege

Solicitor Client Privilege Wood v Wilkie and Millican 2012 BCSC 1120 involve an application for production of the will file of the solicitor who prepared the deceased previous will in 2008, that was subsequently replaced by a will, in contention, in 2009 the defendant opposes… Read more

Murderer Allowed to Collect Insurance Proceeds of Victim Due to Insanity

The Ontario Court of Appeal decision of Dhingral v Dingral Estate 2012 ONCA 261 departs from the long-term legal adage that  for reasons of public policy, a criminal may not benefit from his or her own crime. In 1998, the husband ( appellant) took out a group… Read more