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

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…

Beneficiary of a Trust: Status to Sue

Beruschi v British Columbia 2020 BCSC 1531 discussed the status…

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…

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

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…

Termination of a Marriage-Like Relationship

The BC Court of Appeal in Robeldano v Queano 2019…

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

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…

Admissibility of Medical Records

Many types of estate litigation cases such as testamentary capacity,…

S. 43 WESA: Gifts to Will Witnesses or Their Spouses

Prior to the introduction of WESA on March 31, 2014…

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

Family Verbal Agreement re Property Upheld

In Sojka v Sojka 2023 BCSC 52 the court upheld…

Who to Sue in a Wills Variation Claim

Rule 21-6(1) and (2) of the Supreme Court Civil Rules…

Lawyer Disqualified From Acting

Re Waigel Estate 2022 BCSC 2274 examined a lawyers role…

Removal of an Executor/Trustee 2023

It is difficult to remove and substitute an alternate executor/trustee…

Contractual Certainty

The issue of whether a valid contract has ben formed…

The Admissibility of Hearsay Statements of a Deceased

It is a fact that estate litigation is rife with…

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

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

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

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…

Loan or Gift In the Family Context?

It is often very difficult to distinguish between loans and…

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

Settlement Agreements to Be Upheld

The bar to set aside a settlement agreement is a…

The Importance of Pleadings

Pleadings are important. They delineate the issues between the parties…

Striking Out a Claim

There are many frivolous claims made is estate disputes and…

Anonymization and Publication Ban Orders

Anonymization orders and publication bans are exceptional orders and that…

Adverse Inferences

656621 BC Ltd v David Moerman Painting 2022 BCSC 1683…

Alter Ego Trusts

Alter ego trusts are increasingly being used an an estate…

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

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…

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…

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

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…

S. 58 WESA Refused

The curative provisions of section 58 WESA were declined in…

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…

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

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…

Testamentary Capacity: A Legal Test and Construct

Nassim v Healey 2022 BCSC 402 was a dispute over…

Admissibility of Medical Records

Many types of estate litigation cases such as testamentary capacity,…

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 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…

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…

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 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…

The "In Law Suite" (Unjust Enrichment)

A common source of estate litigation is the contribution of…

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

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…

Mutual Wills Are Problematic

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

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

Family Verbal Agreement re Property Upheld

In Sojka v Sojka 2023 BCSC 52 the court upheld…

Who to Sue in a Wills Variation Claim

Rule 21-6(1) and (2) of the Supreme Court Civil Rules…

Lawyer Disqualified From Acting

Re Waigel Estate 2022 BCSC 2274 examined a lawyers role…

Removal of an Executor/Trustee 2023

It is difficult to remove and substitute an alternate executor/trustee…

Contractual Certainty

The issue of whether a valid contract has ben formed…

The Admissibility of Hearsay Statements of a Deceased

It is a fact that estate litigation is rife with…

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 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…

Wills Variation Summary 2022 re Adult Independent Children

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