Joint Tenancy Severed By Trust

Joint Tenancy Severed By Trust

A  joint tenancy of co owned property was severed by the signing of a trust agreement by one of the co owners held the BC Court of Appeal in  Public Guardian BC v Mee 1972 WWR 424 . The respondent was the joint tenant with her former… Read more

Consolidation of Court Actions

Consolidation of Court Actions

 It is not uncommon that two estate cases are commenced at the same time that relate to the same estate, and in such situations an order is often made for consolidation of the court actions or alternatively, that they be heard at the same time… Read more

Fiduciary Employee - Employer

Fiduciary Duty: Employee For Employer

The law of fiduciary duty is very relevant to estate litigation cases but is also prevalent in almost any other claim where equity is involved, including an employee can be found to be a fiduciary for the employer. M A Concrete Ltd v Truter 2016… Read more

Court Removal of Counsel

Court Removal of Counsel

Court applications are occasionally made to remove the opposing counsel for various reasons ranging from litigation tactics to outright conflict of interest. The following are two cases where this was argued and both discuss the cautious approach that the courts should take in considering such… Read more

Wills Variation and Discretion

Wills Variation and Discretion

One of the difficulties in advising clients in wills variation cases is that under the WESA provisions relating to the variance of wills, the trial judge has an absolute discretion in his or her award, if any, under the act. The five panel appeal decision… Read more

Lawyer Solicitor Client Privilege

Lawyer Solicitor Client Privilege

With very rare exceptions, a lawyer must never disclose communications or instructions between the lawyer and the client without the express permission of the client, as such communications are protected by solicitor client privilege. The privilege continues after death and is assumed by the executor or… Read more

Solicitor Client Privilege Upheld By Highest Court

Solicitor Client Privilege and the Will File

Solicitor client privilege and the will file can often end up in a tug of war between the executor upholding a claim of privilege after the death of the estate deceased, and beneficiaries who want to see the lawyers notes and other file contents of… Read more

The Legal Obligation to Provide For Infants

The Legal Obligation to Provide For Infants

Heatherfield ( Litigation Guardian of) v Heatherfield Estate 2015 BCSC 505    is one of the few reported cases as to of what constitutes adequate provision for a minor, dependent child beyond the decision in Cameron (Public Trustee of) v. Cameron Estate (1991), 41 E.T.R. 30 (B.C.S.C.) [Cameron]…. Read more

Negligence Standard Same For Lawyers and Notaries

Negligence Standard Same For Lawyers and Notaries

I recently advised an inquiry that the negligence standard for a lawyer/solicitor is the same as that for a notary public. The authority for that proposition was initially pronounced in British Columbia in the decision Flandro v Mitha (1992) 93 DLR (4th) 222 at paragraph 232…. Read more

Fiduciaries-cannot-delegate

Fiduciary Cannot Avoid Liability By Delegating

The Sas Law Society reasons for judgment re unprofessional solicitor conduct, repeated a basic rule of trusts-( 2015 LSBC 19, April 20,2015  at paragraph 220)- a trustee cannot avoid liability by using the defence of having delegated core authority  to an employee. The exception would only be… Read more

Privilege-of-Privilege

Lawyer Privilege: What is Included and What isn’t?

FACTS OF CASE: reviews in detail the types of documents and information that are covered by solicitor client privilege, those that are not, and the legal reasoning. The respondents were appointed trustees in foreign bankruptcy proceedings of the appellant bankrupt. They sought an order requiring… 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

Solicitor Client Privilege Upheld By Highest Court

Solicitor Client Privilege Upheld By Highest Court

Attorney General of Canada v. Federation of Law Societies of Canada 2015 SCC 7 upholds the principle of solicitor client privilege in Canada. The case dealt with parts of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and Regulations that sought to require legal… Read more