Embracing alternative dispute resolution in estate litigation matters: A shift towards collaboration
In recent years, there has been a significant shift towards collaborative law and alternative dispute resolution (ADR) methods. Whether stemming from a contract or a will, parties increasingly opt for ADR, including mediation, judicial dispute resolution, arbitration, and hybrid methods […]
No more take-backs: Supreme Court of Canada restricts equitable remedies
Introduction In 2016, the Supreme Court of Canada (“SCC”) released their decision in Canada (Attorney General) v Fairmont Hotels Inc., 2016 SCC 56 (“Fairmont”), in which they restricted the availability of rectification, an equitable remedy whereby the court corrects error(s) […]
Special costs in BC estate litigation: Kolic v. Kolic, 2022 BCSC 1448
Pursuant to the Supreme Court Civil Rules, B.C. Reg. 168/2009, costs during litigation in British Columbia are typically awarded to the successful party at trial. Costs are intended to be at least a partial indemnity for legal fees plus reimbursement […]
Marriage-like relationships and intestate succession in BC: Coad v. Lariviere
Pursuant to British Columbia’s Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), when a person dies without a will, that person’s surviving spouse is entitled to inherit either the entirety of the estate (if there are no descendants) […]
Commencing a proceeding on behalf of the estate of a deceased person: Hoggan v. Silvey
A recent decision by the British Columbia Court of Appeal has transformed the approach for commencing a proceeding on behalf of the estate of a deceased person in British Columbia. Hoggan v. Silvey, 2022 BCCA 176, began with a dispute […]
Ontario Court of Appeal confirms modern approach to cost awards in estate litigation: McGrath v. Joy
On February 10, 2022, the Ontario Court of Appeal (the “Court”) released its decision in McGrath v. Joy, 2022 ONCA 119. In this case, the applicant challenged the validity of a holograph will written shortly before the testator committed suicide […]
Can a will be annulled?
Have you ever wondered whether a will can be annulled after the testator’s death? People do not always leave a will behind before they pass away. When no will can be located, the distribution of the deceased’s property is determined […]
Thoughts on final resting places
Testators generally put much thought into the distribution of their estate. In addition, many testators give instructions for their funeral, how their remains are to be handled and where their remains should be placed. However, many testators may not consider […]
Deception and Dower: Cases of Dower fraud in Alberta and Saskatchewan
The forms and procedures required in Alberta’s and Saskatchewan’s provincial “homestead legislation” create dower rights, which act as safeguards to protect spouses who do not own their homes (the non-owning spouse) from having their homes sold without their consent. However, […]
A prayer for cy-près
What happens when a well-intentioned philanthropist has outlived or misnamed the charity they intended to benefit on their death? Funds a testator has earmarked for a particular philanthropic purpose or organization cannot always be used as they were intended. When […]
Why competent legal advice is fundamental
Interpretative principles reiterated – “for awhile” does not mean indefinitely Four main principles of will interpretation were recently illustrated in Kirst Estate (Re), 2020 ABCA 233. In that case, the deceased left all of his assets, the most significant of […]
Pour over clauses and the Quinn estate
Connections between Canadians and Americans have never been as abundant or transparent as they are now as many Canadians own American property, have American spouses or partners, and have children and grandchildren born or living in the United States. As […]
Rempel Estate v. Dudley: Curative Powers found within the Wills, Estates and Succession Act, SBC 2009, c 13
The Supreme Court of British Columbia recently released an important decision regarding the curative powers of section 58 of the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) with respect to non-compliant documents that constitute a deceased’s testamentary intention. […]
Jacobson Estate: Testamentary intentions v. strict compliance
The Supreme Court of British Columbia recently released an important decision regarding the curative powers of section 58 of the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) with respect to the validity of certain gifts. Jacobson Estate […]
Bill 21: Electronic wills in British Columbia
Following the surge of the COVID-19 Pandemic, the BC Legislature undertook a myriad of proactive measures to assist the general public. One such step from an estate planning perspective was the introduction of Bill 21: Wills Estates and Succession Amendment Act, […]
A trustee’s duties in volatile markets
Introduction Market volatility arising from the COVID-19 pandemic is unlike anything experienced in recent history. Two of the largest single day drops in the history of the Dow Jones Industrial Average occurred in March 2020. Later that same month, the […]
Contesting a Will – overview
This posting provides an overview of some common grounds on which to challenge a Will. Each of the topics mentioned in this post is worthy of a separate, more in-depth article, and we will keep updating this article with the […]
Beneficiaries as a witness to a will: The impact and effect of Section 43 of the WESA
In order for a will to be valid, a will must meet certain formal requirements. These requirements, often referred to as “testamentary formalities,” are relatively standard throughout the common-law world and relatively well-known. In particular, a valid will in British […]
Commiteeship under the PPA: Criteria for selection
In British Columbia, the Patients Property Act, R.S.B.C. 1996, c. 349 (the “PPA”) sets out the legislative framework and authority for an individual to apply for the right to manage an incapable person’s personal and financial affairs. Section 6 of […]
Committee applications: Duties and costs
There is a presumption at law that every adult is capable of making decisions. As a society, we take this presumption seriously in ensuring our rights are not unnecessarily taken from us and that we have autonomy concerning our own […]
Executor compensation – part 2: How does an executor properly take compensation?
In Part 1 of this series on executor compensation, we looked at what is an appropriate amount for an executor to receive in compensation for their work for the Estate. In this post, we look at the proper method for […]
Executor compensation – part 1: How much?
Generally speaking, an executor of an Estate will be entitled to some amount of compensation for their time and effort. Unfortunately, the specific amount of compensation has the potential to become a contentious issue. The beneficiaries may feel that the […]
Spousal claims against estates: The utility and impact of domestic contracts
Although marriage is often regarded as a rite of passage that carries with it intense societal significance, a recent survey reported by Statistics Canada has revealed that 41% of all married couples in Canada will either separate or divorce before […]
Challenging a Will based on undue influence
A Will is not valid if it is the result of “undue influence”, but what exactly does that mean? Before going to court to challenge a Will on this basis, it is important to look closely at what exactly qualifies […]
COVID-19 and the suspension of limitation periods in British Columbia: Possible implications for the distribution of an estate and ongoing estate litigation
On March 19, 2020, the Supreme Court of British Columbia suspended regular operations to protect the health and safety of court users and to help contain the spread of COVID-19. All civil and family matters scheduled for hearing between March […]
What is probate?
Many people are confused by the term “probate”. They likely know it is connected to Wills in some way, but they do not know exactly what it is, and why it is required. In essence, “probate” refers to the process […]
The perils of will kits during the Coronavirus pandemic
During the Coronavirus pandemic (COVID–19) many people may be doing a Google search on “do-it-yourself” will kits to try to get their financial and family affairs in order. You might believe these will kits are an inexpensive and easy way […]
What if an estate has been mismanaged?
Beneficiaries of an Estate are sometimes concerned that an Estate Trustee may be mismanaging Estate assets in one way or another. When this happens, open and frank communication between the Estate Trustee and the beneficiaries can often go a long […]
