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

Mediation Works In Estate Litigation

Disinherited.com concluded another successful mediation this week. While discussing the overall process of mediation with the mediator, we realized that 19/20 of our last mediations together have resolve successfully. That 95% success factor in mediation is in itself astounding as it is the approximate general… Read more

Court Orders Production of Public Guardian Investigation File

Disinherited.com does not usually report on court decisions from other jurisdictions, but the re Landry Estate case from Ontario ( 2011 CarswellOnt 8830) is one that I believe that would also be followed in British Columbia, if such a decision in fact does not already… Read more

Court Refuses Special Costs, But Awards Increased Costs On Scale C Due to Case Difficulty

In our previous blog we discussed the award of special costs made against an estate  administrator who breached his duties. In  Antrobus v Antrobus  2012 BCSC 613, the Court declined an award of special costs but instead ordered costs to be increased under Tariff C of … Read more

Court Orders DNA Samples From Non Party to Court Action

  The Manitoba court decision of Nandwani v Nandwani 2011 CarswellMan 501, caught the attention of disinherited.com out here in BC. The case had to do with an application for Court ordered DNA samples. The deceased immigrated to Canada when his purported son was five months… Read more

Court Outlines Rules For Production of Documents Held By Third Parties

Rules For Production of Documents The decision Nikolic v. Olson 2011 BCSC 125 is a veritable chestnut of law relating to the principles of court ordered production of documents held by third parties, whether within or outside, the Province of British Columbia. The application for… Read more

Credibility – Who Does the Judge Believe?

Credibility-Who Does the Judge Believe? One of my favourite observations about estate litigation, is that invariably, the opposing parties tell such diverging and completely contrary stories from the other, that I often think I am in the wrong court room conducting the wrong trial. IN that… Read more

Injunctions When Contesting a Will or Estate

Injunctions It is  common in estate litigation for one party  to obtain a court order enjoining the other party to either do something, or alternatively be restrained from not doing something. Typically the injunction may involve the freezing of bank accounts and stock portfolios and other… Read more

Witnesses Testify at Trial By Video Conference

Witnesses may testify in court proceedings by video conference. Disinherited.com recently had clients living in Australia who had an estate dispute here in British Columbia. When it came time for the opposing counsel to ask the plaintiff’s pretrial questions under oath, such as in a… Read more

Six Year Limitation For Debt

Six Year Limitation For Debt Starts With the Acknowledgement of the Debt In Gabriel Estate v Ward 2011 Carswell BC 1042, the court dealt with the issue as to when the statutory limitation of 6 years for the collection of a debt commenced to run…. Read more

The Importance of Credibility

The Importance of Credibility Credibility is simply that quality in a witness which renders his or her evidence worthy of belief. One of the most important jobs that I judge has is which witness’s testimony is to believed, and which testimony is to be discounted…. Read more

BC Power of Attorney Act Sets Out the Duties and Powers of an Attorney For First Time

The provisions of the BC Power of Attorney act effective September 1, 2011, are a big improvement over the previous legislation, particularly in that the duties and powers of the attorney are clearly set out in sections 19 and 20 of the act. S. 19-… Read more