The Use of DNA in Estate Litigation

DNA in Estate Litigation The Deoxyribonucleic acid (DNA for short) is the genetic code found in the nucleus of each of our body cells and is increasingly used in estate litigation. Because each person’s genetic code is unique, it is like a genetic “fingerprint”. Initially… Read more

Limitations for Wills Variation Claims

There is a relatively short limitation period for wills variation claims brought under British Columbia`s Wills Variation Act. Under WESA, a claimant must start any court action within 180 days  of the grant of probate to the executor of the impugned will. This allows for… Read more

A Tribute to The BC Wills Variation Act

The question of a child’s ‘entitlement’ to share in a parent’s estate often provokes a very lively discussion. Many believe that a parent`s obligation ends once they have “fed, clothed, educated and sent the child on his or her way”. They argue that testators should… Read more

Proving Undue Influence In Wills

Proving Undue Influence In Wills Has Improved Under WESA Under s. 52 of the new WESA Legislation which came  in effect on April 1, 2014)), the onus of disproving undue influence has shifted to the person who has received the gift under the will where they… Read more

Beware Badly Drafted Separation Agreements re Future Estate Claims

In my experience many matrimonial practitioners may well do a very good job in their respective field, but upon drafting separation agreements to finalize the marriage, many of the agreements are very poorly drafted with respect to inheritance issues between the spouses that may arise… Read more

The Doctrine of Suspicious Circumstances

The Doctrine of Suspicious Circumstances- From Laszlo v Lawton 2013 SCBC 305 [200] In Vout v. Hay, [1995] 2 S.C.R. 876 [Vouf\, the Supreme Court of Canada laid to rest the thread of confusion that had emerged in earlier decisions concerning the burden of proof… Read more

Reasons For Disinheritance In a Will Must Be “Valid and Rational”

A will makers reasons for disinheriting a child in his or her will must be valid and rationale Fuller v Fuller 2008 BCSC 702 is a familiar scenario in estate litigation. The will that states that no provision is being made for a child due… Read more

Don’t Bank On an Inheritance

Do not expect to receive an inheritance is the advice of most financial planners, as well as my own. In the early 1990’2 I read a survey taken by the Vancouver Sun stating that 1/3 of BC residents expect to be disinherited. In my many… Read more

Children “Adopted Out”Cannot Inherit From The Natural Parent On an Intestacy

The BC Court of Appeal decision of Clayton v Markolefas 2002 BCCA 435 stands for the proposition that a natural child of the testator, who has been adopted by another parent, is NOT entitled to inherit from the estate of his intestate natural parent. Nor… Read more

Drafting Lawyers Evidence Rejected -Not Credible or Reliable

Drafting Lawyers Evidence Rejected: Not Credible or Reliable

Sawdon Estate v Watch Tower Bible & Tract Society of Canada 2012 ONSC 4042 involves a case where there was a dispute as to whether seven joint bank accounts with two of the deceased five adult children, went to the five children equally as per… Read more

The Equitable and Discretionary Remedy of Rectification

Rectification: The Governing Legal Principles The Ontario case of Kanji v Canada Attorney General 2013 ONSC 781 provides a good review of the law of rectification of a mistake. A taxpayer attempted unsuccessfully to rectify a trust that was going to incur a great deal… Read more

Wrongly Described Bequests

If  the court comes to the conclusion that the testator intended to pass a bequest, and can determine what that something is, then the fact that the testator wrongly described the bequest  in his or her  will, does not prevent the will taking effect in regard… Read more

Early Vesting v Contingent Gifts

In order to determine the date at which the recipients of the interest are determined, it is necessary to determine whether the gift was vested or contingent A contingent interest is one that is subject to the happening of an event that may never occur…. Read more

Abandoned Infant Wins Wills Variation Claim

McMain v Leblanc 2013 BCSC 891 involves a fact pattern that is all too frequent in wills variation cases-the abandoned infant  who subsequently finds himself or herself disinherited from the absconding parent, often under the pretext of lack of contact, or even estrangement, but rarely the… Read more

The Criteria of a Marriage-Like Relationship

What Constitutes a Marriage-Like Relationship?

Campbell v Campbell 2011 BCSC 1491 is a family law, common-law relationship of approximately 5 years that again reviews the various criteria as to what constitutes a common-law marriage. The parties cohabited unmarried for approximately February 1998 two spring 2002. The female worked the odd… Read more