Copy of Will Not Admitted to Probate, as No Proof Original Was Ever Signed

Re Whitehead Estate 2010 BCSC 348, the deceased was a founding member of a credit union and a retired bank manager. After his death, a “trued up” copy of will dated December 21, 1979 was found, but the original of that will was never located. Under… Read more

Court Declines to Remove Trustee – Orders Construction of Trust

Court Declines to Remove Trustee Winkler v Winkler 2012 BCSC 1949 involves an application by the surviving widow of the deceased, in her capacity as comity of the person and estate of the deceased, sought an order that her stepson be removed as a trustee… Read more

When Can a Will Draftman’s Notes Be Admissible to Interpret a Will Meaning?

Re Hoedl Estate 2012 ONSC 6857 involves the issue of whether the drafting solicitors notes are admissible at a hearing to interpret a will meaning. The executor of the deceased estate was also the solicitor who drafted the will. The executor initially advised of one… Read more

Breach of Fiduciary Duty

Breach of Fiduciary Duty In Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, [2011] 2 S.C.R. 261(S.C.C.), the Supreme Court of Canada concisely described the nature of a fiduciary relationship. At para. 22, the Court observed that the doctrine relating to fiduciary duty… Read more

Punitive Damages Awarded For Trustee’s Egregious Conduct

A trustee’s Egregious Conduct lead to an award of punitive damages of $100,000 against the trustee personally. Walling v Walling 2012 ONSC 6580 involves a decision where the Ontario Supreme Court awarded $100,000 punitive damages against the trustee of an estate for extremely egregious conduct… Read more

Breach of Fiduciary Duty In Widow’s Reliance On Family

A breach of fiduciary duty was found when following her husband’s death, a widow relied upon  family members  to enter into improvident land transfers based on assertions that the widow relied upon. It is a fact that families financially abuse each other and often in the… Read more

Executor Must Renounce In Order to Contest the Estate

Executor Must Renounce to contest the will It is fairly common in estate disputes that the executor of the will is also dissatisfied with the same will that the executor is by office bound to carry out and enforce. Since in estate claims it is… Read more

The Reverse Onus of Proof When Suing a Fiduciary

Suing a Fiduciary and Reverse Onus Is Important The duty of loyalty of a fiduciary is protected through onuses. Fiduciaries are held to an irregularly high standard of behavior in civil law due to the nature of their duties. It is the peculiarly unequal position… Read more

Court Removes Trustee and In Rare Case No Replacement Trustee Appointed

Court Removes Trustee Evans v Gonder 2010 CarswellOnt 1240 Ont C.A is unusual in that the court removed a trustee without appointing a replacement, and found that it had the authority to do so. The case involved a conflict of interest in the trustee necessitating… Read more

Trustee Discretionary Spending Limited By Court

Trustee Discretionary Spending and the Courts Oversight The decision of Steven Thompson Family Trust v. Thompson 2012 ONSC 7138, (Ont. S.C.J.) dealt with a contested passing of accounts for the Steven Thompson Family Trust . The beneficiaries contested the passing and opposed 23 disbursements that… Read more

Executor Compensation Is Taxable Unless Gifted In the Will

Disinherited.com has seen innumerable estate disputes concerning the amount of executor compensation and trustee is entitled. Under the Trustee Act in British Columbia, the maximum is 5% and it would appear that most executors feel entitled to claim this amount. Executor compensation can be particularly… Read more

What Are the Duties of an Executor or Administrator of an Estate?

Duties of an Executor or Administrator of an Estate A personal representative, whether an executor by a will, or an administrator appointed by the court,  has a duty to act solely and exclusively for the benefit of the beneficiaries.  This duty is construed strictly, and… Read more

What is a Fiduciary?

What is a Fiduciary? The term “fiduciary” is not well understood by the average citizen. It was probably best stated  in the simple terms of the following: ” If one person undertakes to act in relation to a particular matter in the interests of another, and… Read more

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