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
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
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
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
The British Columbia Fraudulent Conveyance Act is a statute designed to give a remedy to creditors frustrated in collecting their debts…
At a Glance
Limitation of Actions- New Rules
The Supreme Court of Canada in Grant Thornton LLP v…
S. 58 WESA- Curing A Defective Will
Henderson v Myler 2021 BCSC 1649 is another case dealing…
Dysfunctional Families: First Families vs Second Families
It is a not uncommon fact pattern in estate planning…
Wills Variation ( S 60 WESA) Is Discretionary
Kish v Sobchak 2016 BCC65 discussed how the claim of…
S. 151 WESA- Leave To Bring Action On Behalf of Estate
Mischke v. Mischke Estate 2021 BCSC 1404 dealt with a…
Offers to Settle and Double Costs
Yeomans v Buttar 2021 BCSC 1394 awarded double costs where…
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
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…
No Ademption of Gift in Will
Re Wood Estate 2004 BCCA 556 at para. 1 describes…
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
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
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
Dismissal of a Court Action For Delay
Dismissal of a court action for inordinate delay ( want…
Redacting Relevant Documents
Redacting relevant documents is often attempted by litigants who wish…
Adverse Inferences- Under Utilized?
Govorcin Fisheries v Medanic Fisheries 2021 BCSC 1092 reviewed the…
Courts Refuses Production of Computer Hard Drive
In a long running matrimonial dispute the court in Etemadi…
Security For Costs of $150,000 Ordered
The court in Global Chinese Press Inc ( Global) v…
Renewal of a Notice of Claim
Gill v Basic 20212 BCSC 875 dealt with the renewal…
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
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
Re Riguidel Estate 2017 BCSC 1667 found a signed but unwitnessed will to be valid by invoking the curative provisions…
At a Glance
Hand Alterations to 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…
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,…
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
Demented Willmakers "Might" Be Able to Do a Will
In certain circumstances, a demented person found to be incapable…
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…
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 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
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
The increasing occurrence of laymen doing their own will, combined with the curative effects of sections 58 and 59 of…
At a Glance
Hand Alterations to 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…
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…
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
Limitation of Actions- New Rules
The Supreme Court of Canada in Grant Thornton LLP v…
S. 58 WESA- Curing A Defective Will
Henderson v Myler 2021 BCSC 1649 is another case dealing…
Dysfunctional Families: First Families vs Second Families
It is a not uncommon fact pattern in estate planning…
Wills Variation ( S 60 WESA) Is Discretionary
Kish v Sobchak 2016 BCC65 discussed how the claim of…
S. 151 WESA- Leave To Bring Action On Behalf of Estate
Mischke v. Mischke Estate 2021 BCSC 1404 dealt with a…
Offers to Settle and Double Costs
Yeomans v Buttar 2021 BCSC 1394 awarded double costs where…
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: 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,…