Obligations of a Power of Attorney

Obligations of a Power of Attorney

The Manitoba Supreme Court in Krawchuk v Krawchuk 2017 MBQB 47 outlined the legal obligations  of a power of attorney. Manitoba’s laws for powers of attorneys are essentially the same as for British Columbia. The Court stated inter alia as follows: 18      The applicable law with… Read more

BC CEAS Is a Wealth of Free Legal Information On Elder Law

The BC Centre For Elder Advocacy and Support (BC CEAS) website contains a Wealth of Free Legal Information on Elder Law Issues.   I have taken the liberty of copying their excellent article on basic Power of Attorney information as an example of the quality… Read more

The Factors To Determine an Executor’s Compensation

In the well-known case of Re Toronto General Trusts and Central Ontario Railway (1905), 6 O.W.R. 350 (H.C.), five central factors should be considered by the audit judge in arriving at the amount of an executor’s compensation. The maximum fee for obtaining probate and distributing… Read more

Party Cannot Take Tax Benefit For One Purpose and Deny It For Another

In Rosenthal v Rosenthal, 1986 CarswellOnt 288 (HCJ), it was held that an individual cannot take a position to obtain a tax benefit and then deny that position to obtain a different benefit. At para 51 of Rosenthal, the court noted that “it is being… Read more

The Prudent Investment Standard For Trustees

The Prudent Investment Standard For Trustees

Miles v Vince 2014 BCCA 290 allowed an appeal and removed a  trustee for failure to abide by the Prudent Investor Standard expected of a trustee. The Trustee had used the funds from an insurance trust for a speculative real estate investment The Prudent Investor… Read more

Executor Ordered to Repay Monies Back to Estate Paid Out Before Expiration of 6 Month Limitation

  Executor Ordered to Repay Monies Back to Estate Paid Out Before Expiration of 6 Month Limitation Stevens v. Wood Estate (Re), 2013 BCSC 2380 Until six months have passed from the issuance of probate of a will, s. 12 of the Wills Variation Act,… Read more

Trustee Removed For Selling Assets Below Market Value and Benefiting

Trustee Removed For Selling Assets Below Market Value and Benefiting VanKoughnett & Others v. Austin, 2006 BCSC 1856 is authority for the proposition that a trustee removed under section 30 of the Trustee Act where there is potential conflict of interest between the personal interests of… Read more

The Executors Obligation To Maintain Estate Assets

Executors obligation cannot just idly stand by and allow estate assets to deteriorate or waste- the executor and trustee has a duty of care to mange and preserve the estate assets. The legal test is as follows: The traditional standard of care of an executor/trustee is… Read more

Lawyers Questionnaire Admitted Into Probate Will

Garnett Estate v Garnett Estate 2013 BCSC 1731 is an interesting case where pre WESA, a lawyers questionnaire re will instructions was determined by the court to be a valid will and admitted into probate. In this case the executrix brought an action to prove the will… Read more

Fiduciary Relationships- Leading Case

  It is important on occasion to revisit some of the  British Privy Council case authority chestnuts that have developed as pillars of certain areas of the law. One such case would be the Privy Council case of Noriah v Omar 1929 AC 127  relating… Read more

Neighbour Found to Be a Fiduciary re Finacial Advise/Abuse

  Neighbour Found to Be a Fiduciary Janz v. McIntosh [1999] S.J. No. 121 is an excellent example of a court finding a breach of fiduciary duty where the alleged fiduciary was not a professional . In fact he was simply a neighbor. The Plaintiff… Read more

Advising The Personal Representative

1. INTRODUCTION It is perhaps trite to state that the role of the drafting notary or solicitor is simply not to fill in the blanks and record the testator’s instructions, including his or her choice of executor, but instead to actively advise and draw to… Read more

Removing and Replacing Executors and Trustees

Removing and replacing an executor/ trustee is one of the most common enquiries that I receive. The matter is both intriguing and somewhat complex, largely due to historical developments concerning the legal differences between the role of an executor and a trustee. 2. VOLUNTARY REMOVAL… Read more

Fiduciary Relationships

  Most of us likely do not give a moment’s notice to the concept of the fiduciary relationships. This concept, however, is an extremely important principle of the common law. It provides a very flexible legal remedy often used used to protect vulnerable individuals who… Read more

Removal of an Executor – Trustee

  Dunsdon v Dunsdon 2012 BCSC 1274 has an excellent and brief summary of the law relating to the removal of an executor-trustee, pre WESA as of April 1, 2014 : [202] Put broadly, a trustee may be removed where his or her acts or… Read more