abuse of process

Abuse of Process

Kellogg v Kellogg estate 2013 BCSC 946 involves a situation that is very common in estate litigation-a self represented plaintiff alleging serious allegations such as fraud or undue influence, lack of capacity and so forth,when in fact all of the allegations are groundless, and amounts… Read more

Court Appoints Majority Vote Trustee and Denies Judicial Trustee Appointment

Re Newton estate 2013 BCSC 799, involves a court application between two competing trustees to be appointed the third majority vote trustee of the family trust. When only two remaining trustees were unable to agree on a replacement. One of the trustees applied to appoint… Read more

“Legal Disability” In BC

The term “legal disability” is only defined in the BC Rules of Court, and not in any other statute in this province. Rule 20-2(2) of the BC Rules of Court provides that “a proceeding brought by or against a person under legal disability must be… Read more

Promissory Estoppel

In Anderson v Anderson 2010 BCSC 911, the deceased prior to his death transferred his interest in a cottage to his second wife for one dollar and other good and valuable consideration.   The plaintiffs were the deceased’s children from his first marriage. For several… Read more

Missing Persons and Presumption of Death Order

Disinherited.com  obtained a presumption of death order for a missing person, after a police investigation concluded it was clearly a suicide by jumping from a bridge. Her body had not been found for several months and without giving away the details of her circumstances, there was… Read more

Proprietary Estoppel- Farm Promised Over Years Awarded

 Proprietary Estoppel: Sabey v von Hopffgarten Estate 2013 BCSC 64  NB- OVERTURNED ON APPEAL)  is an excellent example of a plaintiff receiving his just claim through the equitable principles of proprietary estoppel. The plaintiff worked on the deceased’s horse farm for many years, being assured… Read more

Misrepresentation

Buccilli v Pillitteri 2012 ONSC 6624, is a misrepresentation case. It involved a family estate dispute after a tragic death where all the parties had a one third interest in a family business. After the deceased’s death, his surviving widow, on the advice of her… Read more

Unconscionable Inequality In Bargaining Power

Some transactions are so unconscionably bad that the law will set them aside. Buccilli v Pillitteri 2012 ONSC 6624, involved a family estate dispute after a tragic death where all the parties had a one third interest in a family business. After the deceased’s death,… Read more

“Debt Owing” In Will Held Not Owing Due to Statute of Limitations

Statute of Limitations Neudorf Estate v Sellmeyer 2012 SKQB 463 is a sensible decision from the Saskatchewan Queen’s bench interpreting a common situation in will construction disputes, namely the clause that if any of the testatrix’s children owed the deceased money at the time of… Read more

The Vexatious Litigant

Vexatious litigation generally involves legal proceedings brought solely to harass or oppress the opposing party. Vexatious litigation may range from a first-time, frivolous lawsuit to repetitive, meritless applications brought within an otherwise proper lawsuit. In a nutshell, vexatious litigation involves an abuse or misuse of… Read more

How Judge’s Assess Witness Credibility

Judge’s Assessment of Witness Credibility Any trial lawyer will attest that one can have the best court case in the world, but if the trier of fact does not believe your witnesses, then it is a foregone conclusion that the trial will be lost. I… Read more

Court Declines to Order Two Consolidated Actions For Trial

Consolidated Actions For Trial Suzuki v. DeValone, 2013 BCSC 632 was an appeal from a Masters decision who declined to order two separate actions to be consolidated for trial. The BCSC, Justice Bowden agreed and dismissed the appeal [21] In my view, the learned master… Read more

Contract Void For Mutual Mistake

Mutual mistake may void a contract. The law of mutual mistake is set out in Bell v. Lever Bros., [ 1932] A.C. 161, and Dyson v. Moser, 2003 BCSC 1720. A contract will be void from the start for mistake if a mistake by both… Read more

Re Opening a Completed Trial

On rare occasions a trial that has been completed and judgement rendered, may be re opened. Moradkhan v. Mofidi, 2013 BCCA 132 deals with the BC Court of Appeal dealing with the legal issue of when it may be appropriate, or not, for a trial… Read more

Credibility Is Everything In a Lawsuit

Credibility-Every trial lawyer can tell you how he or she had a great case, except the #%~|\#* Judge did not believe a word your client said! It often comes down to who a Judge believes and accepts as a credible witness, as opposed to the… Read more