Contesting Estates

Breach of Trust

Executor Denied Fees For 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

Severance of Joint Account by Conduct

In  Zeligs v Janes 2016 BCCA 280 the BC Court…

Theft, Conversion and Breach of Trust

West Bros. Frame and Chair Ltd. v Yazbek 2019 BCSC…

Knowing Assistance of a Breach of Trust

In Trustees of the IWA v Wade 2019 BCSC 1085…

Suing Parents For Breach of Fiduciary Duty

In Hughes v Hughes 2019 BCSC 1109 a daughter sued…

Punitive Damages in Estate Litigation?

It is rare to see a claim advanced in estate…

Obligation of Disclosure Between Partners/Fiduciaries

McNight v Hutchinson 2019 BCSC 944 discussed the obligation of…

Common Law Spouse Claims

Termination of a Marriage-Like Relationship

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

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…

Termination of a Marriage-Like Relationship

The BC Court of Appeal in Robeldano v Queano 2019…

Marriage-Like Relationships: Are You a Spouse?

Robledano v Queano 2019 BCCA 150 clarified the law with…

Contested Wills

Wills Variation: No Presumption of Paternity

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

Ordinarily Resident

Waslenchuk estate 2020 BCSC 1929 dealt with a common issue…

Memory Stick Will Valid: S. 58 WESA

Rempel Estate v Dudley 2020 BCSC 1766 held that one…

Wills Variation: No Presumption of Paternity

There is no presumption of paternity in British Columbia in…

"Inheritance" Given Broad Interpretation

The words inherit and inheritance were given a very broad…

Suspicious Circumstances

An important aspect of challenging the validity of a will…

No Ademption of Gift in Will

Re Wood Estate 2004 BCCA 556 at para. 1 describes…

Fraudulent Conveyance

Understanding the Fraudulent Conveyance Act

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

Wills Variation-Abandoned Twins Awarded %70 Estate

Jung v Poole estate 2021 BCSC 623 awarded two twins…

Passive-Aggressive Behavior

Passive-aggressive people are frequently seen in estate litigation and family…

S. 58 WESA Refused

The curative provisions of section 58 WESA were declined in…

Cohabitation Agreement Upheld- S. 93 Family Law Act

In Hudema v Moore 2021 BCSC 587 the parties signed…

Promises and Reliance- Proprietary Estoppel

Khela v Clarke 2021 BCSC 503 examined promises made and…

What Debts Survive Bankruptcy

Re Poonian 2021 BCS555 reviewed the law as to what…

Intestacy

The Presumption Against An 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

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

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…

No Ademption of Gift in Will

Re Wood Estate 2004 BCCA 556 at para. 1 describes…

How to Defeat a Testamentary Gift: Beneficiary Fraud

“Fraudulent beneficiaries”  has arisen in a claim that I am…

Loan or Gift

Loan or Gift Amongst Families

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

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…

Loan or Gift In the Family Context?

It is often very difficult to distinguish between loans and…

Deceit, Unjust Enrichment and the "Sugar Daddy"

Norkum v Fletcher 2018 BCSC 904 involved as a backdrop…

Parental Monies to Children: Loan or Gift?

Weinhaupt v Paracy 2017 BCSC 1662 deals with an increasing…

Parent Money to Children: Gift or Loan?

Dheenshaw v Gill 2017 BCSC 319 deals with an increasingly…

Lost Wills

Dealing with 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

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…

Unsigned Copy of Lost Will Admitted Into Probate

Is an unsigned copy of a lost will admittable? The…

Dealing with Lost Wills

An update to this article is that since the introduction…

Probate Litigation

Revocation of a Grant of Probate

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

Converting a Petition to an Action

Kerfoot v Richter 2018 BCCA 238 reviewed the law relating…

Certificates of Pending Litigation (CPL)

Lipskaya v Guo 2020 BCSC 2090 canceled a certificate of…

Video Evidence Is Admissible

In the past several years there has been a great…

Mutual Wills Are Problematic

Although rare, mutual wills are extremely problematic in estate matters…

Privilege In Lawyer Communications

Privilege in lawyer communications, including without prejudice offers, can be…

Judicial Declarations/Declaratory Judgements

Park v Mitchell 2020 BCSC 1147 provides guidance on the…

Resulting Trust Claims

The Doctrine of Purchase Money Resulting Trust

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

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…

Gifts Cannot Be Revoked

Once a gift has been made of an interest in…

Joint Bank Accounts

Joint bank accounts are frequently the subject of estate litigation…

Resulting Trusts: Parents Successfully Sue Daughter

TLG v KMG 2019 BCSC 1236 involves a dispute between…

The Doctrine of Purchase Money Resulting Trust

In Nishi v Rascal Trucking 2013 SCC 33 , the…

S. 58 WESA – Is it a Will?

Unwitnessed Will Valid: S.58 WESA

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

Electronic Wills and S. 58 WESA

Much of the legal profession and general public do not…

Revival: S. 58 WESA Used

Jacobson Estate 2020 BCSC 1280 showed the court’s willingness to…

Section 58 WESA 2020

I spent approximately 40 years of my 46 years of…

S.58 WESA: Undated Handwritten Napkin Valid Will

In Gust v Langan 2020 SKQB 42, a Saskatchewan decision,…

Can This Will be Remedied under S. 58 WESA to be Valid?

I had two enquiries today in which both questions posed…

S.58 WESA: Suicide Note Valid Will

In Gregoire v Cordani 2020 BCSC 276 held that a…

Testamentary Capacity

Suspicious Circumstances and 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

Elderly Will-Makers and Testamentary Capacity

The age of elderly will-makers has never been an element…

Heavy Onus on Will Drafter to Check for Capacity

Friesen Estate (1985) Man QB 88 sets out the law…

Testamentary Capacity: Knowledge and Approval

One of the components of testamentary capacity and a valid…

Mental Capacity: G.P. Evidence Admitted as Expert

On of the grounds for appeal in Wilton v Koestlmaier…

Testamentary Capacity and Lay Witnesses

In a testamentary capacity case James v Field 2001 BCCA…

Testamentary Capacity: The Modern Restatement

The modern restatement of the test for testamentary capacity means…

Undue Influence

Winning an Undue Influence Case

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

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…

Undue Influence and Independent Legal Advice

Davy v Davy 2019 BCSC 3128 reviewed inter alia the…

No Special Costs Awarded in Lost Undue Influence Claim

In Webber v Sullivan 2019 BCSC 1784 the court declined…

Identifying Undue Influence

A checklist for identifying a relationship of domination and dependence…

Unjust Enrichment

Unjust Enrichment and Insurance Policies

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 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…

The "In Law Suite" (Unjust Enrichment)

A common source of estate litigation is the contribution of…

Unjust Enrichment Disallowed For Family Workers

The BC Appeal Court in McDonald v McDonald 2017 BCCA…

Unjust Enrichment in Common Law Relationships

The Ontario Court of Appeal in Reiter v Hollub 2017…

Will Interpretation

Interpreting the Ambiguous Will

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

Mutual Wills Are Problematic

Although rare, mutual wills are extremely problematic in estate matters…

Electronic Wills and S. 58 WESA

Much of the legal profession and general public do not…

Can This Will be Remedied under S. 58 WESA to be Valid?

I had two enquiries today in which both questions posed…

Mutual Wills vs Mirror Wills Explained

In my experience, there is a lot of confusion amongst…

S.46 WESA: When Gifts Cannot Take Effect

S.46 WESA applied to the following simple fact pattern that…

S.46 WESA: Priorities of Distribution When Gifts Fail

Terezakis Estate 2018 BCSC 805 discusses section 46 of WESA…

Will Revocation

Revocation of Wills Post WESA

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

Wills Variation-Abandoned Twins Awarded %70 Estate

Jung v Poole estate 2021 BCSC 623 awarded two twins…

Passive-Aggressive Behavior

Passive-aggressive people are frequently seen in estate litigation and family…

S. 58 WESA Refused

The curative provisions of section 58 WESA were declined in…

Cohabitation Agreement Upheld- S. 93 Family Law Act

In Hudema v Moore 2021 BCSC 587 the parties signed…

Promises and Reliance- Proprietary Estoppel

Khela v Clarke 2021 BCSC 503 examined promises made and…

What Debts Survive Bankruptcy

Re Poonian 2021 BCS555 reviewed the law as to what…

Wills Variation

The BC Wills Variation Act: The Basics

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

Wills Variaiton: The Ten Considerations

The leading case Tataryn v Tataryn (1994) 2 SCR 807…

Wills Variation-Elderly Spouse, Second Long Marriage

The wills variation decision of Boyd v Shears 2018 BCSC…

Wills Variation: The Judge's Discretion

The BC Court of Appeal in Kish v Sobchak 2016…

BC Wills Variation- Cases Where Adult Child Awarded %50 or More

Here are six cases where the court in a wills…

Wills Variation: Overcoming Estrangement

Perhaps top amongst the purported reasons for disinheritance between a…

Wills Variation Awards Fall Rateably

Section 65 WESA provides that, unless the court otherwise determines,…