A Fiduciaries Duty Of Trust and Loyalty

Fiduciaries duty is a persons in a position of trust, ranging from doctors, lawyers, accountants, to financial advisors and many others in between. “Wilson J. offered some guidance on the subject of fiduciary relationships in the leading case of Frame v. Smith, [1987] 2 S.C.R. 99… Read more

Letters of Administration Revoked For Failing To Satisfy Test of Common Law Spouse

Letters of Administration Revoked For Failure to Prove Common Law Spouse Marriage Like Relationship Souraya v Kinch 2012 BCSC 1252 involves a case where the grant of letters of administration revoked on the basis that the deceased’s alleged common-law spouse,failed to  prove that she met the … Read more

Executors of Deceased Substituted For Deceased

Executors of Deceased Substituted For the Deceased In Court Action Dicken Mechanical Ltd v Nohels Group Inc 2012 BCSC 917 is a good example of the process that the Rules of Court have established to deal with the situation where  one a party dies and how his… Read more

Debt to Estate Survives Bankruptcy Due to Breach of Fiduciary Duty

Debt to Estate Survives Due to Breach of Fiduciary Duty Kingston Estate v. Charrette(2011), 2011 ONSC 7126, 2011 CarswellOnt 14834(Ont. S.C.J.) was in favour of the Estate Trustee/Plaintiff and held that the Defendants, the Charrettes, had not been given a gift of $25,000 by the… Read more

Beneficiary Who Prepared Will Has Heavy Burden

Beneficiary Who Prepared Will and Substantially Benefits has a very heavy burden of proof Cooke v Walsh 1965 (52) WWR 449 is a chestnut of a decision by former Chief Justice Wilson that deserves comment  even 37 years later. The deceased made a will shortly… Read more

Court Refuses to Order Sale of Property 11 years after Death, Where Executor Has Power to Postpone Sale and Is Acting Bona Fide

Acting Bona Fide Hriczu v Bailey re Estate of Mackey 2011 BCSC 454 the issue before the court was whether a beneficiary could force the executor to sell a parcel of property and distribute the proceeds amongst the beneficiaries, where the executor had been holding… Read more

executors compensation

How Much Should Executors Get Paid?

  How Much Should Executors Get Paid? Unless the will provides otherwise, all executors whether lay or professional, whether experienced or not, are entitled to be paid remuneration in accordance with the provisions of Section 88 of the Trustee Act, R.S.B.C. This section allows the… Read more

Executor Removed For Borrowing Against Estate Asset

Executor Removed For Borrowing against an estate asset that went into foreclosure. Stevens v Whittacker 2012 BCSC 1188 involves an application for the removal of the defendant executor and trustee of the parties mother’s last will and testament. The executor had heavily mortgaged the estate… Read more

The Executors Year

In the ordinary course, estate trustees are permitted a period of one year from the date of the death (sometimes described as the executors year) to gather in and realize estate assets, absent special circumstances that might indicate an abridgement of this one year period…. Read more

Unsigned Draft Will Refused Probate

The only thing surprising about this decision from a British Columbia perspective is that it actually proceeded to court. The solicitor prepared the draft will and advised the deceased in writing that she was to make an appointment to come in and sign it. The… Read more

Words “Born After” Interpreted

“Born After” Interpreted in Two Express Trusts Turk v Turk 2011 ONSC 6497 dealt with the various rules of construction and interpretation of the words“born after the date of the settlement” that were used in to family trust settled by a grandmother in 1992 and… Read more

Severance of Joint Tenancy By Power of Attorney Upheld

Severance of Joint Tenancy by a Power of Attorney Upheld   Houston v Houston Estate 2012 BCCA 300 upheld the severance of the joint tenancy through the use of a power of attorney despite the fact that the attorney. stood to gain financially in a… Read more

What Is a Power of Attorney and How Do They Work?

    What Is a Power of Attorney?( POA) The BC Court of Appeal decision in Houston Estate v Houston 2012 BCCA 300 raises a few very good legal issues relating to Powers of Attorneys. Disinherited.com will blog further about this appeal case, but for… Read more

Who Gets What When There is No Will (Intestate)

What happens when there is no will? My late mother used to tell me even when I was an established estate lawyer that when someone dies without a will, his or her assets go to the government. No matter how hard I tried, I could… Read more

Ad Hoc “Casual” Fiduciary Relationships

Sedin Estate v Rusin 2011 BCSC 1207 is an excellent example of financial abuse of an elderly person by a trusted financial advisor who was found to be in a casual and ” ad hoc “fiduciary relationships with the deceased. The deceased and her husband became… Read more