The Courts Power to Amend Pleadings

It is frequent in estate litigation that new facts arise and the claim must be amended to provide for the adequate remedy. This blog is a summary of the courts power to make such an order.   Rule 6-1(1) of the Supreme Court Rules provides… Read more

The Implied Confidentiality of Documents In Litigation

Sovani v Gray, Jampolsky and ICBC 2007 BCSC 403 deals with the issue of confidentiality of document exchange in litigation relating to the disclosure of documents to non-parties to the litigation, without the consent of the actual parties to the litigation. The court held that to… Read more

Pleading Invalid Will and Wills Variation Claim Together Allowed

From time to time during the almost 40 years that I have practiced estate litigation, I have been told by various opposing counsel that it is inappropriate to plead in the same court action that a will is not valid, and therefore must be proved… Read more

Court of Appeal Rules on Res Judicata, Abuse of Process and Estoppel

Bronson v. Tompkins Ranching Ltd., 2013 BCCA 477 The Beneficiaries of a trust obtained a judgment against the trustee for a breach of trust in relation to the sale of shares by the trust. They then commenced a second action, against the recipient of the… Read more

Cost Awards in Estate Litigation

1. INTRODUCTION Cost awards are the amount of monies that a Court awards one litigant against another as a contribution towards legal fees incurred. Until recent years, practitioners in estate litigation , had little to fear with respect to costs awards. Win or lose, the… Read more

What is Solicitor-Client Privilege?

In Skogstad v Law Society of BC 2007 BCCA 310 the Bc Court of Appeal held: “6. Solicitor-client privilege is a substantive rule of law, a core legal value. The protection of the confidentiality of communications between a lawyer and his or her client is… Read more

The Collateral Attack Rule

The trusts of the late Sam Cohen reported in Re Newton Trust 2013 BCSC 1665 involved an issue relating to the collateral attack rule. One of the trustees sought $800,000 in past fees for periods covered in previous passing of accounts. Various legal issues such… Read more

The Tort of Conversion

Ast v Mikolas 2010 BCSC 127 re Conversion [125] The tort of conversion involves the wrongful interference with another person’s chattels such as taking, using or destroying the goods in a way that is inconsistent with the owner’s ownership of or title to the goods…. Read more

Passing of Executor’s Accounts

The following article is that of Master Young on the passing of executor’s accounts, as presented to the Wills and Trusts Subsection in April 2012. Master Young ,described the registry procedure for probate grants. The initial vetting of probate applications goes to senior registry staff to… Read more

Seeking Court Directions By The Executor/Administrator

Executors often do not know what to do and may be faced with decisions that are difficult to make without Court guidance. Where there is no certainty in the law, and no consensus amongst the beneficiaries affected, the Executor has recourse to the court by… Read more

Res Judicata, Issue Estoppel and Abuse of Process

    McIntyre V Richardson Estate 2012 BCSC 1347 provides a good summary of the law of the related legal principles of res judicata, issue estoppel, and abuse of process . They were also  thoroughly canvassed by Madam Justice Ballance in Tylon Steepe Homes Ltd…. Read more

Only Committee Under Patients Property Act Can Sue On Behalf of the Patient

Daum Estate v Sovereign General Insurance Co. 2012 BCSC 1052  discusses how only the committee of a patient under the Patients Property act can enforce the provisions of a contract on behalf of the patient, and no one else. The Public Guardian and Trustee took… Read more

Court Costs In Estate Litigation

  Court Costs In Estate Litigation: Jung v. Lee Estate, [2007] B.C.J. No. 2592 provides a useful summary of costs in estate litigation: The costs follow the event unless the court otherwise orders. If the cause of the litigation originated from the conduct or errors… Read more

The Maxim “Falsa Demonstratio”

The phrase falsa demonstratio (non nocet cum de corpore constat), is a legal maxim that means a false description doesn’t void a document if the intent is clear. It is sometimes used to correct an obvious mistake. The maxim falsa demonstratio, defined in Black’s Law… Read more

Lawyers Duty To Be Civil to The Court, Opposing Counsel, and Parties

A Lawyers Duty To Be Civil to The Court, Opposing counsel and the  Parties What other occupation addresses their worthy court room opponent as My Learned Friend or simply My Friend? Civility is considered an essential quality in how disputes are dealt with in the… Read more