Contesting Estates
Breach of Trust
Executor Denied Fees For Breach of Trust
An executor/trustee who has committed a breach of trust may be denied fees for such egregious behavior. The court has…
At a Glance
Trusts Basics
A trust arises where one party (the trustee) holds the…
Attorney Cannot Transfer Parent's Assets to Protect Parent's Finances
An attorney cannot transfer all of the funds to another…
The Obligations of a Trustee
Chung v Chung 2022 BCSC 1592 examined the legal obligations…
The Power of Attorney Act
Sazarynick v Skwardchuk 2021 BCSC 443 reviewed how much of…
The Test For a Fiduciary Relationship
At the highest level of generality, a fiduciary must act…
Charitable Trust Declined By Court
In Jim Crerar Charitable Trust 2022 BCSC 60 the court…
Common Law Spouse Claims
Termination of a Marriage-Like Relationship
The BC Court of Appeal in Robeldano v Queano 2019 BCCA 150 reviewed the law as to when a person…
At a Glance
Marriage Like Relationships: Mutual Intent Not Necessary
The BC Court of Appeal in Mother 1 vs Solus…
When Does a Marriage -Like Relationship Begin
In order to determine what property constitutes family property the…
Wife Substituted as Executor: Courts Declaratory Powers
Re Rattray estate 2019 BC SC 1611 used the courts…
Marriage Annulment For Non-Consummation
An Ontario decision Razavian v Tajik 2019 BCSC 5662 granted…
Profanity Doesn't Terminate Marriage Like Relationship
Re Landriault Estate 2019 BCSC 1089 held that one party…
“Marriage-Like" Relationship Criteria
DN V MR 2019 BCSC 53 is another decision that…
Contested Wills
Wills Variation: No Presumption of Paternity
There is no presumption of paternity in British Columbia in wills variation cases so paternity must therefor be proven. Under…
At a Glance
Forgery and Handwriting Analyis
I commonly receive estate enquiries where the enquirer strongly asserts …
The Difference Between a Mirror Will and a Mutual Will
In my experience, there is a lot of confusion amongst…
Mental Capacity to Make a Will
Jung Estate v Jung Estate 2022 BCSC 1298 reviewed the…
Appointing an Administrator of a Will
Berlinguette Estate 2022 BCSC 1098 discussed the criteria for appointing…
Executor and Proving the Will in Solemn Form
When the validity of a will is in question, the…
S. 86 Trustee Act Directions After a Murder
Re Unger 2022 BCSC 189 involved an application by the…
Fraudulent Conveyance
Understanding the Fraudulent Conveyance Act
The British Columbia Fraudulent Conveyance Act is a statute designed to give a remedy to creditors frustrated in collecting their debts…
At a Glance
Enforcing Contracts
Meadows v Sward Estate 2023 BCSC 1369 involved a claim…
Trustee Care and Management Fees
Bokovic v Borkovich 2023 BCSC 2050 reviewed the law relating…
Lawyer Client Privilege Waived By Correspondence Disclosure
In S. (FCA) v S. ( CE) 2023 BCSC 1098…
Wills Variation- Long Time Marriage Like Relationship
Lemire v Von Hollen 2023 BCSC 1348 is a good…
Wills Variation- Abandoned Infant Receives 60% of Estate
Buatista v Gutkowski Estate 2023 BCSC 1485 is a favorable…
2023 Significant Wills Variation Decision
The BC Court of Appeal in the decision Tom v.…
Intestacy
The Presumption Against An Intestacy
There is a strong presumption against an intestacy in the construction/interpretation of a will that a testator did not go to the trouble and expense…
At a Glance
Spousal or Child Support After Death
Bouchard v Bouchard 2018 BCSC 1728 dismissed an application for…
Wills Drafting 101
The cardinal rule of wills drafting is that there is…
S.46 WESA: Priorities of Distribution When Gifts Fail
Terezakis Estate 2018 BCSC 805 discusses section 46 of WESA…
Duties and Liabilities of Executors / Trustees
The duties and potential liabilities for executor/trustees can be onerous…
Wills Variation: Adopted Out Children Have No Claim
In British Columbia a child who has been adopted out…
Pet Law: Everything to Fido
In the early 1990s I was consulted by executors of a…
Legacies Left in Wills
The 3 Types of Gifts in Wills
Will makers rarely appreciate that there are 3 types of legacies (Gifts In Wills) that can be left in a will: general, demonstrative…
At a Glance
Racism and Discrimination In Estates
In the spirit of testamentary autonomy, will makers often attempt…
Children Born After Death of the Testator
I recalled learning “en ventre sa mere” in law school…
What Makes It a Will?
Quinn Estate v Rydland 2019 BCCA 91 visited the old…
Wills Drafting: The Myth of the “Simple Will”
It must be stressed that any document that has consequences…
Wills Variation Explained
JR v JDM 2016 BCSC 2265 explained the criteria in…
Wills Drafting 101
The cardinal rule of wills drafting is that there is…
Loan or Gift
Loan or Gift Amongst Families
Zellweger v Zellweger 2018 BCSC 1227 discussed inter alia the criteria for determining if monies advanced within the family context…
At a Glance
Loan or Gift From Mom/ Dad To Newly Weds
I previously wrote on the “bank of mom and dad”…
Gifts From Parents to Adult Children
In Pecore v. Pecore, 2007 SCC 17 the Court considered…
S. 43 WESA: Gifts to Will Witnesses or Their Spouses
Prior to the introduction of WESA on March 31, 2014…
Is It a Loan or a Gift?
Grenier v Williams 2020 BCSC 462 dealt with the law…
Court Finds Gift Over Resulting Trust
Gully v Gully 2018 BCSC 1590 involved in a case…
Loan or Gift Amongst Families
Zellweger v Zellweger 2018 BCSC 1227 discussed inter alia the…
Lost Wills
Dealing with Lost Wills
An update to this article is that since the introduction of WESA on April 1, 2014, I anticipate that the…
At a Glance
Presumption of Revocation and Lost Wills
Re Bennett Estate 2023 BCSC 559 discussed the presumption of…
Safeguard Your Original Will
It is important to safeguard ones originally signed the will…
Revocation of Wills Post WESA
The introduction of the Wills Estates and Succession act (WESA)…
What Happens When You Lose Your Will?
What happens when you lose your will? Many people, in…
Copy of Will Probated
Under certain circumstances a copy of a will rather than…
The Presumption of Revocation of A Lost Original Will
Presumption of Revocation of A Lost Original Will law is…
Probate Litigation
Revocation of a Grant of Probate
The leading case in British Columbia on the revocation of a grant of probate is Desbiens v Smith Estate 2010…
At a Glance
Judicial Discretion and Appeals From It
Kish v Sobchak 2016 BCCA 65 deals with the court’s…
When Do Spouses Separate?
Dixson v Moss 2023 BCSC 1248 discussed the law relating…
Severance of a Trial
In civil suits severance refers to the division of a…
Applications for Extension of Time to Appeal
In accordance with R. 6(2) of the Court of Appeal…
Notices to Admit
One of the most powerful yet under utilized litigation tool…
Admissibility of Expert Opinion Evidence
The law governing admissibility of expert opinion…
Resulting Trust Claims
The Doctrine of Purchase Money Resulting Trust
In Nishi v Rascal Trucking 2013 SCC 33 , the court described the doctrine of the purchase money resulting trust…
At a Glance
Donative Intent and Gifts
Hsu v Hsu 2023 BCSC 683 discussed the law relating…
Joint Tenancies- Who Gets What on Death?
The transfer of the legal interest in property into joint…
Assets From Parents to Child
A large amount of estate litigation can often be based…
Henson Trusts (Disability Trusts)
The Supreme Court of Canada in SA v. Metro Vancouver…
Personal Property and Presumption of Joint Tenancy
Robb v Robb 1993 Carswell 110 followed long-established common-law principles…
Transfer to One Child Held Resulting Trust, Not Gift
Flesjer v Butterfield 2019 BCSC 2332 held that the transfer…
S. 58 WESA – Is it a Will?
Unwitnessed Will Valid: S.58 WESA
Re Riguidel Estate 2017 BCSC 1667 found a signed but unwitnessed will to be valid by invoking the curative provisions…
At a Glance
Court Analysis of S. 58 WESA Application to Cure Defective "Will"
Henderson v Myler 2021 BCSC 1649 refused to invoke S.…
S. 58 WESA Criteria For "Curing" A Defective Will
Re Clarke Estate 2023 BCSC 103 is the latest in…
Medical Records Admissibility and the Remoteness of Time
Re Gibb estate 2021 BCSC 2461 involved inter alia the…
S.58 WESA Allows Extrinsic Evidence Re Intention
Re Chou 2022 BCSC 783 reviewed the test to be…
S. 58 WESA- Curing A Defective Will
Henderson v Myler 2021 BCSC 1649 is another case dealing…
Hand Written Alterations to a Will Approved - S. 59 WESA
In an unopposed hearing Re Jamt Estate 2021 BCSC 788…
Testamentary Capacity
Suspicious Circumstances and Testamentary Capacity
It’s important that will drafters be aware of and watch for any suspicious circumstances that might exist when taking will…
At a Glance
Forgery and Handwriting Analyis
I commonly receive estate enquiries where the enquirer strongly asserts …
Mental Capacity to Make a Will
Jung Estate v Jung Estate 2022 BCSC 1298 reviewed the…
Insane Delusions
I am sure most estate litigators have had a deceased…
Testamentary Capacity, Knowledge & Approval
Jung estate v Jung estate 2022 BCSC 1298 found a…
Testamentary Capacity and Knowledge and Approval of a Will
Nassim v Healey, 2022 BCSC 402 at para. 44 summarized…
Recognizing Dementia
I was told by a geriatric psychiatrist that many people…
Undue Influence
Winning an Undue Influence Case
A review of case law makes clear the majority of such allegations are dismissed at trial due to insufficient proof.…
At a Glance
Forgery and Handwriting Analyis
I commonly receive estate enquiries where the enquirer strongly asserts …
Admissibility of Medical Records
Many types of estate litigation cases such as testamentary capacity,…
Undue Influence and the "Doctrine of Righteousness"
Halliday V Halliday 2019 BCSC 554 discusses the historical concept…
Undue Influence and Legal Advice
Davy v Davy 2019 BCSC 1826 reviewed the law relating…
Undue Influence in Short
The essential legal framework for the assessment of claims of…
Undue Influence Check List of Red Flags
A good place to start when understanding the law of…
Unjust Enrichment
Unjust Enrichment and Insurance Policies
Moore v Sweet 2018 SCC 52 held that pursuant to the law of unjust enrichment, a constructive trust should be…
At a Glance
Unjust Enrichment Claim Dismissed For Juristic Reason
Gill v Gill 2022 BCCA 264 upheld the dismissal of…
Unjust Enrichment and Constructive Trusts
Unjust enrichment involves an enrichment of the defendant, a corresponding…
Unjust Enrichment and Insurance Policies
Moore v Sweet 2018 SCC 52 held that pursuant to…
Unjust Enrichment Upheld re: Illegal Contract
Kim v Choi 2020 BCCA 98 held that an Illegal…
Unjust Enrichment Dismissed Against Trust
In Fredericks Alter Ego Trust v Downer 2019 BC SC…
Deceit, Unjust Enrichment and the "Sugar Daddy"
Norkum v Fletcher 2018 BCSC 904 involved as a backdrop…
Will Interpretation
Interpreting the Ambiguous Will
The increasing occurrence of laymen doing their own will, combined with the curative effects of sections 58 and 59 of…
At a Glance
Wills Interpretation - Bequests to Charity or It's Officer
Royal Trust v Welfare Institution of Jews of Athens 2022…
The Presumption of Due Execution
The court in Re Grace estate 2022 BCSC 1283 reconsidered…
S.59 WESA Order Made After 180 Days Post Probate
Simpson v Zaste 2022 BCCA 208 was an appeal from…
Racism and Discrimination In Estates
In the spirit of testamentary autonomy, will makers often attempt…
Hand Written Alterations to a Will Approved - S. 59 WESA
In an unopposed hearing Re Jamt Estate 2021 BCSC 788…
Principles of Contract Interpretation
Principles of Contractual Interpretation The goal is to ascertain the…
Will Revocation
Revocation of Wills Post WESA
The introduction of the Wills Estates and Succession act (WESA) on March 31,2014 made a few significant changes to the…
At a Glance
Enforcing Contracts
Meadows v Sward Estate 2023 BCSC 1369 involved a claim…
Trustee Care and Management Fees
Bokovic v Borkovich 2023 BCSC 2050 reviewed the law relating…
Lawyer Client Privilege Waived By Correspondence Disclosure
In S. (FCA) v S. ( CE) 2023 BCSC 1098…
Wills Variation- Long Time Marriage Like Relationship
Lemire v Von Hollen 2023 BCSC 1348 is a good…
Wills Variation- Abandoned Infant Receives 60% of Estate
Buatista v Gutkowski Estate 2023 BCSC 1485 is a favorable…
2023 Significant Wills Variation Decision
The BC Court of Appeal in the decision Tom v.…
Wills Variation
The BC Wills Variation Act: The Basics
Any discussion of the BC Wills Variation Act ( now S.60 WESA) requires an understanding of the English common law…
At a Glance
Who to Sue in a Wills Variation Claim
Rule 21-6(1) and (2) of the Supreme Court Civil Rules…
Wills Variation and Estranged Children
J.R.v J.D.M. 2016 BCSC 2265 discusses in great detail the…
South East Asian Women and the Wills Variation( S. 60 WESA)
This article was originally posted on the National Post. (…
Wills Variation and "Estranged" Children
In my estate litigation practice I have noticed that a…
Wills Variation and Adult Independent Children
The leading case Tataryn v Tataryn (1994) 2 SCR 807…
Alter Ego Trusts
Alter ego trusts are increasingly being used an an estate…