Six Year Limitation For Debt

Six Year Limitation For Debt Starts With the Acknowledgement Six Year limitationof the Debt

In Gabriel Estate v Ward 2011 Carswell BC 1042, the court dealt with the issue as to when the statutory limitation of 6 years for the collection of a debt commenced to run. The plaintiffs B and R were the executors of the deceased’s estate. The plaintiff G was the former husband of the deceased. All of the plaintiffs claimed that the former husband and the deceased loaned the defendant W sums of money in 1991 and 1994, and that the deceased loaned the defendant further monies in 1999. W paid part of the loans in 2000 and 2001. W claimed that the obligation to pay the other monies was statute barred as a result of being outside of the six-year limitation. The plaintiff brought an action for repayment of the loan and the action was allowed. The court held that the time ran under the six-year limitation starting when the debtor properly acknowledged the debt. Despite prior vague statements. W’s proper acknowledgment was only found in a 2007 e-mail setting out amounts owing. The plaintiffs were allowed to collect on all but one loan that was made, as the remaining loans were within the limitation. In the experience of, executors of estates are often faced with rather vague documents that seem to evidence loans made to various individuals, who invariably tend to forget to repay the funds after death.

The Importance of Credibility

The truth is out thereThe Importance of Credibility

Credibility is simply that quality in a witness which renders his or her evidence worthy of belief.

One of the most important jobs that I judge has is which witness’s testimony is to believed, and which testimony is to be discounted.

When there is conflicting testimony, as there almost always is in estate litigation, the judge must assess each witnesses credibility in order to make findings of fact.

Some of the general guidelines that the courts follow with respect and credibility are as follows:

1 The Supreme Court of Canada in Goodman Estate the Geffen 2 SCR 353 (1991) held that findings of fact made at trial based on credibility of witnesses are not to be reversed on appeal unless the trial judge made some palpable and overriding error which affected his assessment of the facts. Even where a finding of fact is not contingent upon credibility, the appellate court should maintain a non-interventionist approach to a review of trial court findings. In all cases, appellate review should be limited to those instances where a manifest error has been made;

2. In FH v MCDougall 2008 SCC 53 the Supreme Court of Canada further stated that “provided the judge has not ignored the evidence, finding the evidence of one party credible may well be conclusive of the results because that evidence is inconsistent with that of the other party. In such cases, leaving one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case.” ;

3. Faryna v Chorny (1952) 2 DLR 354 is perhaps the most frequently cited case of the subject of credibility assessment. At 357 it was stated that:

“the credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth the story of a witness in such a case must be its harmony with the preponderance of the probabilities which are practical and informed person would readily recognize as reasonable in that place and in those conditions.”

4. in Unique Tool and Gauge Inc v Impact Tool (2002) OJ 681 at para 21 it stated:

” the witnesses ability and opportunity to observe;

his appearance and manner while testifying;

his power of recollection;

any interest, bias or prejudice you may have;

any inconsistencies in his testimony and, the reasonableness of his testimony when considered in the light of its harmony with the preponderance of the probabilities that the evidence was credible, believable and reliable.

5. In R v RWB (1993) BCSC 192 held that another very important factor in assessing credibility is the parties interests.

Whether a witness has a motive to lie is one factor which may be considered in assessing the credibility of witness, but it is not the only factor to be considered. It is essential that the credibility and reliability of the complainants evidence be tested in the light of all of the other evidence presented.

BC Power of Attorney Act Sets Out the Duties and Powers

BC Power of Attorney Act Sets Out the Duties and Powers

The provisions of the BC Power of Attorney act effective September 1, 2011, are a big improvement over the previous legislation, particularly in that the duties and powers of the attorney are clearly set out in sections 19 and 20 of the act.

S. 19- The duties of the attorney that must be carried out are:

A. Act honestly and in good faith;
B. Exercise the care diligence and skill of a reasonably prudent person;
C. Act within the authority given in the enduring power of attorney and under any enactment;
D keep prescribed records and produce the records for inspection and copying at the request of the adult

S 20. Powers of the Attorney

The attorney must also do the following;

A. Give priority when managing the adult financial affairs to meeting the personal care and health care needs of the adult;
B. unless otherwise specified in the power of attorney, and the handles property only in accordance with the trustee act;
C. Encourage the adult involvement in decision-making;
D. Not dispose of property that the attorney knows is a specific testamentary gift of the adults will;
E. Use reasonable efforts to keep the adult personal effects that the disposal of the adult

The attorney must keep the adult the property separate from his or her own unless the property is jointly owned by the adult and the attorney.

An Attorney may make a gift or loan, or charitable gift, from the adults property if the enduring power of attorney permits the attorney to do so, but the total value of all gifts loans and charitable gifts made by an attorney in a year must not be more than the lesser of

a) 10% of the adult taxable income for the previous year ;
b) and $5000.

An attorney may not will make her change her will for the adult form of the attorney is acting, but may change a beneficiary designation made by the adult, if the court authorizes the change, or create a new beneficiary designation, if the designation is made in an instrument that is renewing replacing, or converting a similar instrument made by the adult, or a new instrument made by the adult, while capable, and the newly designated beneficiary is the adult estate. is optimistic that these clear guidelines will assist in reducing the amount of financial abuse that has historically taken place through the mis-use of a Power of Attorney.