Litigation Guardian: Lawyers Can Assess Mental Capacity

Litigation Guardian: Lawyers Can Assess Mental Capacity

In Gengenbacher v. Smith, 2016 BCSC 1164, the court examined what is the test that a solicitor must satisfy to determine if the solicitor can represent an individual seeking to be a litigation guardian of an adult under a legal disability and determined that the… Read more

The Court Orders Mental Capacity Exam

Court Orders Mental Capacity Exam

In Re Singh 2017 BCSC 984 the court invoked its parens patriae jurisdiction and  ordered a 93 year old father to undergo a mental capacity examination by two geriatric doctors . Two of his six children claimed that their father was mentally incompetent to manage… Read more

Delusions and Testamentary Capacity – 4 Factors to Consider

This video is about delusions and testamentary capacity required to make a will. The leading decision of testamentary capacity is Banks versus Goodfellow from 1857 which held that in order to have valid capacity, a person must 1) know what a will is; 2) know what… Read more

Mental Capacity and Marriage

This video is about capacity to marry. That’s mental capacity. We all know the story of Anna Nicole Smith and her love affair and marriage to the 94 year-old billionaire. After his untimely passing, there was years and years of litigation which centered on whether… Read more

Dysfunctional Families: The Predator Spouse

Dysfunctional Families: The Predator Spouse

A disturbing and increasing  trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually  financial affairs and marries the victim in short order. Even if the family had been reasonably functional prior to… Read more

Parens Patriae Jurisdiction of the Courts

Parens Patriae Jurisdiction of the Courts

Re Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs. The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection of… Read more

Mental Incompetency and the Patient's Property Act

Mental Incompetency and the Patient’s Property Act

Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly mental incompetency patient. A Trust company had earlier been appointed to manage the elderly woman’s  financial affairs pursuant to a Power… Read more

Burden of Proof In Mental Capacity

Burden of Proof In Mental Capacity

Becker v Becker 2016 BCSC 487 nicely summarizes much of the law relating to mental capacity aka testamentary capacity including the law re the burden of proof in mental capacity cases.  THE  LAW 51      The burden of proving testamentary capacity is on the party propounding… Read more

Who Should Be Appointed Committee (Guardian)

Who Should Be Appointed Committee (Guardian)

The vexing problem of who should be appointed the committee (legal guardian) of a demented person under the Patient’s Property Act  RSBC often involves the worst of family “tug a wars” over the financial  and personal affairs of a loved one. The law re who… Read more

Court Costs In Estate Litigation

It is very old fashioned thinking that court costs come out of the estate , win or lose, as costs are now an important factor in settlement considerations.   The decision Deuschmann Estate v Fallis  2011 BCSC 1009 at paragraph 95 sets out the general… Read more

Son May Not Inherit For Murdering Mother

Re Fenotti Estate 2014 BCSC 1533 reviewed the law and held that a murderer of the deceased, his mother, son may not inherit from her as a result of public policy that prevents a wrong doer from benefiting from his or her own crime. The personal… Read more

“Sham” Trusts

Plaintiff’s often allege that a purported trust is a sham trust that the courts should ignore. The following is the criteria that the courts utilize when dealing with such an assertion as was discussed in M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd. ,… Read more

How to Sever a Joint Tenancy With a Co Owner

A prospective client called yesterday inquiring whether three siblings who had joint tenancy with a fourth sibling, can force a sale so as to buy out the troublemaking fourth sibling. I answered yes,  as the Partition of Property act allows for a severance of the… Read more

The Formalities of a Valid Marriage

The Formalities of a Valid Marriage    45 If the parties to a marriage, solemnized in good faith and intended to be in compliance with the legislation, are not under a legal disqualification to contract such marriage and have lived together and cohabited as a… Read more

Seniors-Avoid Joint Bank Accounts

I have seen many seniors financially abused by setting up a joint bank account with a child/caregiver/neighbour/friend  who takes advantage to the point where I advise seniors to avoid their use. I recently came across a Maclean’s magazine article dated April 4, 2011 entitled “Signing… Read more