Waiver of Privilege

    Waiver of Privilege Generally speaking, any communications between a client and his or her lawyer are confidential and privileged. There are exceptions but this is the general rule, and through various means, the privilege can be “waived” , so that the other side… Read more

Nominal Damages

Litigants can occasionally “ win the battle, but still lose the war”. This can occur in situations like where the plaintiff wins the case, but the court finds that the plaintiff did not suffer damages, so a nominal amount is awarded. Where no actual damages… Read more

Dismissal of a Court Action For Inordinate Delay

Dismissal of a Court Action The relevant principles were summarized and restated in 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27 – 29, as follows: [27] These cases suggest to me that a chambers judge charged with the hearing… Read more

Renewing an Un-Served Notice of Claim

   Renewing an Un-served Notice of Claim Olson v Kurz Estate 2013 BCSC 1026 A court action was commenced in 2001 and the court process was not served on the defendant.The plaintiff served an amended statement of claim is September 0f 2002, but did not… Read more

Apportionment of Costs

Wiseman v. Perrey, 2013 BCSC 904 is a decision containing a good summary on various aspects of costs, ranging from offers to settle, special costs, and the apportionment of costs between parties who have been ” largely successful” at trial. The general rule is that… Read more

Failing to Prove Allegations of Undue Influence Can Lead to Special Costs

Failing to Prove Allegations of Undue Influence Can Lead to Special Costs awarded against the plaintiff as the courts view claims of undue influence seriously as it is a form of civil fraud. Special costs may be awarded as a means of discouraging and chastising… Read more

Offers To Settle

Offers to Settle are a well entrenched litigation tool that is used to make offers to the opposing side, that if rejected, and the winning party “beats” the offer, then the winning party is entitled to increased costs to be awarded to them from the… Read more

Special Costs Refused In Ng “Right To Life Case”

Right To Life Case Ng v Ng 2013 BCSC 1492 discusses in detail the law relating to special costs, as claimed by the winning party in the previous litigation where the family of Kenny Ng, who had been in a coma for 7 years, in… Read more

Proving Wills – Solemn Form vs Proof In Common Form

  There are two ways to prove a will- the easy way known as common form and the contested prove it way of solemn form   Proof in solemn form 2009 BCSC 194 Romans Estate v. Tassone discusses the different forms of proving a will-… Read more

Pre Trial Examination of Witnesses

    Parties believe they are entitled to examine witnesses under oath before trial, but in fact, it involves a court application which may or may not succeed.   Rule 7-5of the Rules of Court ( previously Rule 28) governs such application. Rule 7-5 (1)… Read more

Hearsay Evidence In Estate Litigation Is Generally Admissable

  Hearsay evidence is generally  more admissable than in any other area of the law. Modonese v Delac 2011 BCSC 82, affirmed by the Court of Appeal at 2011 BCCA 501, provides a summary of the law re hearsay evidence. Hearsay: General Principles [79] The Supreme… Read more

Hearsay Evidence Admitted as Necessary and Reliable

The test for hearsay evidence in short is, is  it necessary and reliable The Ontario Appeal Court recently admitted statements made by a deceased to family members prior to his death as evidence of his insurer’s mistaken cancellation of one of the deceased’s accidental death… Read more

Courts Summary Dismissal of Capacity /Undue Influence Claim

Summary Dismissal  of Capacity and Undue Influence Claims   Orfus Estate v. Samuel & Bessie Orfus Family Foundation 86 E.T.R. (3d) 6, is an Ontario Court of Appeal case that upheld the summary dismissal of a daughter’s claim of lack of capacity and undue influence… Read more

Administrator Pendente Lite

Administrator Pendente Lite It is a frequent occurrence in estate litigation that situations arise where the executor is unable to act, or there is no executor or administrator at all, and the validity of the will or the estate is very much in question. In… Read more

Equity Depends On the Length of the Lord Chancellor’s Foot?

‘Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make… Read more