Ontario Court Upholds Award Against Losing Party of Over $700,000 in Costs For Frivilous Action

Costs For Frivilous Action The recent Ontario decision involving Smith Estate v Rotstein 2012 CarswellOnt 9064, provides a detailed examination of recent awards for court costs involving lengthy but frivolous action estate litigation fights. Here a sibling engaged in lengthy and complex litigation alledging undue… Read more

Court Inherent Jurisdiction to Protect Those Who Need Protection

 Supreme Court Inherent Jurisdiction to Protect Those Who Cannot Protect Themselves Referring  again to the Kenny Ng case, the wife as committee for the person of Kenny, had decided after seven years of him being in a coma,to remove his life support system. His family applied… Read more

Adverse Inference For Failure to Call Certain Evidence

There are certain cases where it is simply necessary and expected to call a particular witness who might have extensive knowledge as to the facts in question, and failing to do so, will lead the court to draw an adverse inference as to what that… Read more

Interim Injunctions

Interim Injunctions Black’s law dictionary defines “injunction” as a “court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury”. In the Ng life support application blogged about yesterday, the patient’s family applied to the court for an… Read more

Administrator Appointed Pending Litigation

Independent Administrator Appointed For  Estate Assets Pending Litigation, aka administrator pendent lite. A common feature of many estate  disputes  is the acrimonious nature between the various claimants to the assets of the deceased. In fact, certain cases become renowned within the profession and the courts… Read more

Production of Previous Wills File Refused Due to Solicitor Client Privilege

Solicitor Client Privilege Wood v Wilkie and Millican 2012 BCSC 1120 involve an application for production of the will file of the solicitor who prepared the deceased previous will in 2008, that was subsequently replaced by a will, in contention, in 2009 the defendant opposes… Read more

Murderer Allowed to Collect Insurance Proceeds of Victim Due to Insanity

The Ontario Court of Appeal decision of Dhingral v Dingral Estate 2012 ONCA 261 departs from the long-term legal adage that  for reasons of public policy, a criminal may not benefit from his or her own crime. In 1998, the husband ( appellant) took out a group… Read more

“Where There Is a Will, I Want To Be In It”- But Can I Say No?

“Where there is a will, I want to be in it” is one of the great   PARAPROSDOKIAN in the English language. A PARAPROSDOKIAN is a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected in a way that… Read more

Objections to Hearsay Evidence Often Denied In Estate Litigation

The Manitoba case of  Young v Paille 2012 CarswellMan 12  is a good example of how far the courts are prepared to go to allow hearsay evidence to be admitted in most estate litigation cases where it is the best evidence available. (Disinherited.com has previously… Read more

S 20 Patients Property Act Creates Rebuttable Presumption re “Gifts”

Patients Property Act The decision Sutherland, committee of the Estate of Fountain v Dorland and Rendell 2012 BCSC 615, which disinherited.com blogged about yesterday, also contained  an additional issue relating to section 20 of the Patient’s Property Act, which says as follows: 20. Every gift… Read more

Litigation Guardians Appointed For The Mentally Incapable

The Ontario case of Richi v Kakaoutis  2011 Carswell 14616  is an example of what procedure was followed in Ontario when a litigant became mentally ill, requiring a litigation guardian to be appointed to represent his interests because he was incapable. I suspect it would… Read more

Dismissal of Court Claim For “Want of Prosecution”

McBeth-Kearns v Marples 2012 BCSC 714  is an estate litigation case that like so many, can often end up sitting on the lawyer’s desk or filing cabinet for  years. Charles Dickens wrote about the inordinate delay in estate litigation back in his day in his… Read more

The Missing Hell’s Angel and the Presumption of Death

The Presumption of Death  and Missing Hells Angel Re Burgess, 2004 BCSC 62,  in estate circles known  as the “Hell’s Angels case”, is good illustration of the practical considerations often applied by the court in presumption of death applications. On or about January 7, 2002,… Read more

Public Guardian and Trustee Can Be Sued For Mismanagement of Patient’s Affairs

It is clear that the Public Trustee can be held liable for damages arising out of its negligent management of the patients estate. This was initially confirmed by the British Columbia Court of Appeal in Wood v.  British Columbia (Public Trustee) (1986), 70 B.C.L.R. 373 (… Read more

Credibility Revisited

This blog revisits the law relating to credibility. On November 4.11 disinherited.com blogged ” The Importance of  Credibility“.That is an understatement  and then some.The following observations of O’Hallaran J.A. in Faryna v. Chorny (1951), [1952] 2 D.L.R. 354 (B.C. C.A.) 354 at pp. 356-357 are… Read more