Spoliation of Evidence

Spoliation of Evidence

Spoliation of evidence is the intentional destruction of relevant evidence when litigation exists or is pending. There are few cases on the issue in Canada but it does occur on occasion. In Holland ( Guardian ad litem) v Marshall 2008 BCCA 468 the appeal court… Read more

Stay of Proceedings

Stay of Proceedings

Gerritse v Hospital For Sick Children 2017 ONSC 1859 dealt with an application for a stay of proceedings in one court case until the paternity issue in another case was firstly decided. The Court refused the application and cited the law as previously set out in… Read more

Change of Venue of Trial

Change of Venue of Trial

Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city. The defendants in Harder sought an order transferring the proceedings  from Victoria to the Vancouver… Read more

Conflict of Law: "Ordinarily Resident"

Conflict of Law: “Ordinarily Resident”

Cresswell v Cresswell Estate 2017 BCSC 178 dealt with a conflict of law situation and held that the jurisdiction of the BC court should be denied for a wills variation action and held that it should properly be filed under Alberta court jurisdiction as the… Read more

Will In "Contemplation of Marriage" Not Revoked

Will In “Contemplation of Marriage” Not Revoked

Pace Estate 2016 BCSC 2306 held that a 2001 will left to “my common law spouse  of four years ” was not revoked by their subsequent marriage under what was then S 15 Wills Act that provided that marriage revoked a will. The parties married over… Read more

Statute Barred Debt to Estate Deducted From Beneficiary

Statute Barred Debt to Estate Deducted From Beneficiary

Re Johnston Estate 2017 BCSC 272 upheld the rule in Cherry v. Boultbee  which provides that where a legatee of a share of the residue is a debtor of the estate, he or she is not entitled to receive his or her legacy without bringing… Read more

The Duty of Care Owed By a Will Drafter

The Duty of Care Owed By a Will Drafter

In Korpiel v Sanguinetti (1999) B.C.J. 1048 the court concluded that a will drafter, usually a solicitor or notary, owes no duty of care to beneficiaries beyond the competent and timely fulfillment of the testator’s testamentary instructions. In the Sanguinetti case, the court considered whether… Read more

Non Binding (Precatory) Words In Will Not a Trust

Non Binding (Precatory) Words In Will Not a Trust

Non Binding (Precatory)  words in a will were found not to create a trust that was legally binding on the trustee, but instead that the words were non binding ( precatory) and thus only morally binding an thus an outright bequest. Killam v Killam 2017… Read more

Severance of Court Actions Upheld On Appeal

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions… Read more

Amending Court Pleadings

Amending Court Pleadings

Russell Estate v Larson 2017 BCSC 113 contains a good summary of the law relating to amending court pleadings. Pleadings are very important in litigation so as to give a concise definition of the issues to be tried and to allow the opposing party to… Read more

Executor Added After Expiration of Wills Variation Limitation

Executor Added After Expiration of Wills Variation Limitation

 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred. In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff… Read more

Damage Assessments on Appeal

Damage Assessments on Appeal

“An appellate court will not interfere with a trial judge’s assessment of damages unless he or she erred in principle of law, misapprehended the evidence, failed to consider relevant factors or considered irrelevant factors, or there was no evidence on which the judge could have… Read more

Dementia disease

Dementia disease

An epidemic of dementia disease is predicted to occur within the next 15-20 years. The most common types of dementia disease such as Alzheimers, frontotemporal dementia, vascular dementia, and Lewy Bodies are expected to dramatically increase by %50  over the next 15 -20 years as… Read more

The Defence of Mistake

The Law of Mistake

Teather v Kawashima 2016  BCSC  2231 involved litigation where the defence of mistake was argued and the Court reviewed the law. When parties are negotiating a contract it may occur that  one party is thinking of one thing while the other party is thinking of… Read more

Fertility and WESA: Is This Reproductive Matter Property?

Fertility and WESA

A deceased husband’s frozen sperm at a fertility centre was declared to be personal property under WESA and previous case law and thus could be inherited by the widow on an intestacy. The court in KLW v Genesis Fertility Centre 2016 BCSC 1621 ordered to release of… Read more