"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

Measuring Tort Damages

Measuring Tort Damages

In Trotter –Brons (Litigation guardian) v Corrigan 2016 BCSC 1891 the court sets out the rule for measuring tort damages. Action was brought pursuant to Family Compensation Act for damages arising from deaths of infant plaintiff’s biological parents who were killed in motor vehicle accident… Read more

Interim Distribution Ordered

Interim Distribution Ordered

An interim distribution of $250,000  of his maximum estate entitlement of $460,000 was ordered to a 76 year old former spouse of the deceased who needed funds in Davis v Burns Estate 2016 BCSC 1982. The application was made  under section 155 of the Wills,… Read more

Fraudulent Misrepresentation

Fraudulent Misrepresentation

Jasmur Holdings Ltd v Taynton Developments Inc. 2016 BCSC 1902 reviewed inter alia the tort of fraudulent misrepresentation. 116.       The tort of fraudulent misrepresentation has four elements. They were recently summarized by the Supreme Court of Canada in Combined Air Mechanical Services Inc. v. Flesch 2014… Read more

Judgement Does Not Sever Joint Tenancy

Judgement Does Not Sever Joint Tenancy

The registration of a judgement against one owner of a jointly owned property does not sever joint tenancy. If the only asset owned by the judgement debtor is the joint tenancy property, then registration of the judgment against the interest of the debtor will not… 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

Adverse Inference

Adverse Inference

Bronson v Hewitt 2010 BCSC 169 reviewed the law of adverse inference, which probably is not utilized as much by counsel as they could. It typically arises when a key witness who would normally be expected to testify, does not. Adverse Inference [323] The plaintiffs… 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