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

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