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
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
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
There is no presumption of paternity in British Columbia in wills variation cases so paternity must therefor be proven. Under…
At a Glance
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…
Duress In Family and Estate Situations
Blom v Blom 2921 BCSC 181 set aside a separation…
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
Standing in Partition - Possessory Interest Required
Pallot v Douglas 2017 BCCA 254 dismissed an appeal and…
Interpreting Insurance Policies
Estate litigation occasionally involves the interpretation of coverage under a…
Equity Exoneration
In Zeligs v Janes 2015 BCSC 525 the court imposed…
Fiduciary Obligations of Attorney Increase If Donor Incompetent
In Zeligs v Janes 2015 BCSC 525 the court examined…
Marriage- Like Relationships 2022
Mother 1 v Solus Trust et al 2021 BCCA 461…
Court Approval of a Sale
The test to be established by a party seeking approval…
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
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…
Deceit, Unjust Enrichment and the "Sugar Daddy"
Norkum v Fletcher 2018 BCSC 904 involved as a backdrop…
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
The leading case in British Columbia on the revocation of a grant of probate is Desbiens v Smith Estate 2010…
At a Glance
Alter Ego Trusts
Alter ego trusts are increasingly being used an an estate…
Debts Owed By Beneficiary Must Be Accounted For
Re Kolic Estate 2022 BCSC 1527 reviewed an equitable principle…
Non Disclosure Leads to Adverse Inference
Sarzynick v Skwarchuk 2021 BCSC 443 held that the defendant…
Medical Records Admissibility and the Remoteness of Time
Re Gibb estate 2021 BCSC 2461 involved inter alia the…
Striking Out Claims, Pleadings, Petitions or Other Documents
Parmar v Sidhu 2022 BCSC 1359 reviewed the law relating…
Reconsideration of a Court Decision
The court in Re Grace Estate 2022 BCSC 1283 reconsidered…
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
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…
Resulting Trusts: Parents Successfully Sue Daughter
TLG v KMG 2019 BCSC 1236 involves a dispute between…
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
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
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
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
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
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
The introduction of the Wills Estates and Succession act (WESA) on March 31,2014 made a few significant changes to the…
At a Glance
Standing in Partition - Possessory Interest Required
Pallot v Douglas 2017 BCCA 254 dismissed an appeal and…
Interpreting Insurance Policies
Estate litigation occasionally involves the interpretation of coverage under a…
Equity Exoneration
In Zeligs v Janes 2015 BCSC 525 the court imposed…
Fiduciary Obligations of Attorney Increase If Donor Incompetent
In Zeligs v Janes 2015 BCSC 525 the court examined…
Marriage- Like Relationships 2022
Mother 1 v Solus Trust et al 2021 BCCA 461…
Court Approval of a Sale
The test to be established by a party seeking approval…
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
Wills Variation Summary 2022 re Adult Independent Children
The leading case Tataryn v Tataryn (1994) 2 SCR 807…
Wills Variation: Daughter Awarded 30% Net Estate
Pascuzzi v Pascuzzi 2022 BCSC 907 is a wills variation…
Wills Variation: Abandoned Twins Awarded 70% Estate
Jung v Poole estate 2021 BCSC 623 awarded two twins…
Wills Variation: 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…