Severance of Court Actions Upheld On Appeal

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions… Read more

Misfeasance of Public Officials

Misfeasance of Public Officials

It occasionally occurs in estate litigation that a party has complaints about the misfeasance of  public officials, (usually  against the Public Guardian and Trustee), as a result of perceived deliberate  unlawful actions on the part of the public official against the complainant The tort of… Read more

Amending Court Pleadings

Amending Court Pleadings

Russell Estate v Larson 2017 BCSC 113 contains a good summary of the law relating to amending court pleadings. Pleadings are very important in litigation so as to give a concise definition of the issues to be tried and to allow the opposing party to… Read more

Executor Added After Expiration of Wills Variation Limitation

Executor Added After Expiration of Wills Variation Limitation

 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred. In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff… Read more

Damage Assessments on Appeal

Damage Assessments on Appeal

“An appellate court will not interfere with a trial judge’s assessment of damages unless he or she erred in principle of law, misapprehended the evidence, failed to consider relevant factors or considered irrelevant factors, or there was no evidence on which the judge could have… Read more

Funeral Service

Funeral Service

It is surprisingly common for loved ones of a deceased person to argue or even litigate over the funeral service and disposition of the remains of a deceased person. One of the leading cases in BC is Kartsonas v Kartsonas Estate 2010 BCCA 336 where… Read more

The Defence of Mistake

The Law of Mistake

Teather v Kawashima 2016  BCSC  2231 involved litigation where the defence of mistake was argued and the Court reviewed the law. When parties are negotiating a contract it may occur that  one party is thinking of one thing while the other party is thinking of… Read more

"Survive By Five Days"

“Survive By Five Days”

S  10 of WESA provides for when a person does not survive a deceased person by five (5) days or longer when provided for in an instrument(  ie a will) is conclusively deemed to have died before the deceased persona for all purposes and thus will… Read more

Chain of Executorship When Executor Dies

Chain of Executorship When Executor Dies

The chain of executorship when the executor dies before finishing his or her  duties  refers to where probate has been taken by an executor who survives the original testator, the right of such executor to a grant of probate does not cease and the representation to… Read more

Taxation of a Lawyers Account

Taxation of a Lawyers Account

Lawyer client relationships sometimes go off the rails and a dispute may arise about an unpaid account. The remedy is taxation of the account before a registrar of the Supreme  Court and both the client and the lawyer have the right to have the matter… Read more

Who Can Be an Expert Witness?

Who Can Be an Expert Witness?

The complexity  litigation issues  has increased the need and use of expert witnesses, and just who can be one is sometime an issue in itself. Some of the experts that I have  utilized over years of estate litigation are geriatric psychiatrists, accountants and forensic auditors, and… Read more

Copy of Will Probated

Copy of Will Probated

Under certain circumstances a copy of a will rather than the original, may be admitted to probate as the last valid will of the deceased. The competing claimants will typically  argue that there is a presumption of revocation when the original will cannot be produced…. Read more

Gifts In Contemplation of Marriage

Gifts In Contemplation of Marriage

Gifts In Contemplation of Marriage. P.S. v H.R. 2016 BCSC 2071 involves a claim for the return of a gift ( a $17,000  engagement ring) made in contemplation of marriage arising from a whirlwind relationship of three months that abruptly ended due to the plaintiff’s… Read more

Laches

Laches

Laches was discussed and rejected by the court in Grewal v Khakh 2016 BCSC 2055, where the court quoted the Supreme Court of Canada: 52           In  M. (K.) v. M. (H.), , [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85 (S.C.C.) at para. 98, where the… Read more

Assets Passing Outside of the Estate

Assets Passing Outside of the Estate

Assets Passing – Probably most people in North America die holding assets that pass from their name to others or their estate that pass both ” inside” and “outside” of the estate. A deceased’s will only distributes assets that were personally owned by the deceased at… Read more