Estoppel By Convention

Estoppel By Convention. The Supreme Court of Canada has set out the criteria as to what establishes estoppel by convention in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53. In paragraphs 53 and 54, the Court sets out how the forms of estoppel… Read more

Mutual Release

At the end of each court case, the lawyers generally have each party sign a Mutual release that in layman’s terms means they will never sue each other for the same matter again, it being a final settlement. The mutual release signed by the parties… Read more

Credibility – Who Is Believed Wins

Credibility  is whoever is believed , usually wins the case.One can have the best of court cases, but if the Judge does not believe your client’s testimony, as  there is no witnesses credibility, usually results in a lost trial. The BC  Court of Appeal in… Read more

Abuse of Process

The tort of abuse of process is made out when a party shows a misuse or perversion of the Court’s process for an exterior or ulterior purpose. In other words, using a certificate of pending litigation to tie up a property and prevent it being… Read more

Bequest to Non Existent Charity Saved By Cy-Pres Doctrine

  In Re McGregor Estate 2014 BCSC 896, the deceased left a bequest to “Auxiliary to Woodlands”, a charitable organization that no longer existed at the time of death, but was saved from lapsing as a bequest of the estate by the application of the… Read more

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