Appointing and Removing a Litigation Guardian

Appointing and Removing a Litigation Guardian

Under Supreme Court Rule 20 – 2 (2) a proceeding brought by or against a person under a legal disability must be started or defended by his or her litigation Guardian. A person is typically under a legal disability when under the age of 19… Read more

Notice to Dispute: Understanding the Rules

Notice to Dispute: Understanding the Rules

A party wishing to contest the issuance of a grant of probate or administration may file a Notice to Dispute under Rule 25 (10) of the Supreme Court Rules. While a notice to dispute is in effect, the registrar must not issue an estate grant…. Read more

Dismissal For Delay (Want of Prosecution)

Dismissal For Delay (Want of Prosecution)

PMC Builders & Developers Ltd v Country West Construction Ltd 2009 BCCA 535 is one of the leading cases in BC for dismissal of a court action for delay, also known as want of prosecution. It was recently followed in an estate case Re Strom… Read more

Court Directions

Court Directions

Biely Estate v CNIB 2017 BCSC 788 involved an application for Court directions to be followed with respect to three competing wills of a deceased. The application was brought pursuant to Supreme Court Civil Rule 25-14(8)(a) and sought directions that the litigation only deal with… Read more

Special Costs Not to Include Pre Litigation Conduct

Abuse of Process in BC Estate Litigation

Many estate litigation claims and counterclaims contain far too much emotional distortion so as to become frivolous, vexatious, unnecessary and otherwise an abuse of process that upon application, may lead to those portions of the claim found to be such to be stricken or dismissed entirely…. Read more

Consolidation of Court Actions

Consolidation of Court Actions

 It is not uncommon that two estate cases are commenced at the same time that relate to the same estate, and in such situations an order is often made for consolidation of the court actions or alternatively, that they be heard at the same time… Read more

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: Misusing the Court's Process for Ulterior Purpose

Abuse of Process: Misusing the Court’s Process for Ulterior Purpose

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

Implied Confidentiality

The Implied Confidentiality of Documents In Litigation

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 disclose discovery information by the parties to nonparties, constitutes… 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