Western Canada Business Litigation Blog

Category Archives: Estate Litigation

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When can you remove an Executor or Trustee?

Posted in Estate Litigation
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It is common for someone writing a will to appoint as their executor a family member or friend.  Sometimes this is done without understanding what it means to be an executor.  Sometimes the ability and propriety of the proposed executor is not considered.  Often, the relationship between the proposed executor and the will-maker changes after… Continue Reading

Wills, Estates and Successions Act – A new regime for B.C.

Posted in Estate Litigation
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“The law of succession is among the most archaic areas of private law, and British Columbia legislation dealing with various aspects of succession is highly fragmented, spread throughout a forest of statutes.” Wills, Estates and Succession, A Modern Legal Framework, B.C. Law Institute, 2006 Those words were written nearly a decade ago and described, in… Continue Reading

Ski Buddies: Is there a Duty of Care?

Posted in Estate Litigation, Insurance
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Some time ago, I wrote a blog post about a Court of Appeal decision that upheld, and arguably extended, the enforceability of liability waivers and releases signed by customers of commercial enterprises.  That particular case involved zip-lining, an activity the court described as an inherently risky recreational adventure.  While that decision served as confirmation that… Continue Reading

An Executor’s Duty: The Perils of Early Distribution

Posted in Estate Litigation
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An executor, absent consent or a court order, must not make any distribution of estate assets to beneficiaries of a will for six months following the grant of probate. This is a statutory prohibition in section 12 of the Wills Variation Act (the “WVA”). There is a serious risk to executors who make early distribution. This six… Continue Reading

What If You Can’t Find Your Dad’s Will?

Posted in Estate Litigation
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Despite the advice of professionals to the contrary, families often fail to discuss estate matters with each other.  Parents may not even say they have a will, let alone discuss its contents or location.  This may leave the surviving family trying to figure out the affairs of their deceased parent without knowing where to start. … Continue Reading

Resolving Ambiguities in a Will

Posted in Estate Litigation
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Despite the intentions of a testator and the best drafting skills of their lawyer, there are often occasions when there is an ambiguity or apparent error in the resulting will.  These can be anything from small typographical mistakes through to directly conflicting descriptions of a testator’s assets, beneficiaries or wishes.  The difficulty for an executor… Continue Reading

How Not to Deal with Family Discord when Helping an Infirm Parent

Posted in Estate Litigation
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It is always a difficult situation when a loved one develops some form of dementia and gradually slips into incapacity.  It is even more troubling when well-meaning family members end up in a legal dispute over who should assume legal responsibility for the financial and personal care of the patient.  In recent years, Canadian legislatures… Continue Reading

The Difficult Problem of Disinheriting a Child

Posted in Estate Litigation
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Many parents, late in life, come to realize that one or more of their children are not people they like or respect.  There are usually a myriad of reasons for this, the cause of which depends on who you ask.  But for the parent, their disappointment often leads them to consider making no provision for… Continue Reading

The Court’s Jurisdiction to Investigate the Competence of an Individual: Temoin v. Martin, 2012 BCCA 250

Posted in Estate Litigation
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In an earlier blog I discussed a recent decision that recognized the Supreme Court’s ability, in appropriate circumstances, to order that an individual submit to medical examinations as part of the process of determining whether they were competent.  The case involved lay evidence of possible incompetence but the two medical opinions required under the Patients… Continue Reading

What is the Role of an Executor?

Posted in Estate Litigation
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People are often asked, and frequently agree, to act as the executor of another’s estate.  This decision is generally made without an appreciation of what the executor’s role really is, particularly where there is a dispute over the Will.  Ordinarily, an executor is supposed to preserve the estate’s assets, pay the debts and distribute the… Continue Reading

Mutual Wills: Are they Enforceable? A Recent Example: Re Wright Estate, 2012 BCSC 119

Posted in Estate Litigation
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Mutual wills are a common estate planning tool.  Typically, a couple agrees to leave all or most of their estate to the surviving spouse, who then agrees to provide irrevocable gifts over to children.  Mutual wills are premised on an agreement between the spouses that following the death of one of them, the other won’t… Continue Reading

Joint Tenancy and the Right of Survivorship

Posted in Estate Litigation
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One of the most common forms of estate planning, particularly among couples, is not to have any plan at all.  That is often a very bad idea for a wide variety of reasons.  However, there are circumstances where it is a good idea and can avoid many estate problems.  This can be done by owning… Continue Reading

Was it a Loan or a Gift? Does it have to be Paid Back?

Posted in Estate Litigation
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In the undocumented world of family relations and finances, money is often provided by one person to another without the exact nature of the transaction being discussed, understood or documented.  Mum provides $20,000 to child to be used towards the purchaser of a house or to fund a year at school.  Granddad pays $15,000 towards… Continue Reading

Can Step-children Seek to Vary a Will?

Posted in Estate Litigation
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Earlier this year, I wrote a short blog on the right of step-children to claim an inheritance from a step-parent or step-grandparents. The upshot was that, absent a specific bequest in the will, step-children do not have a right of inheritance from a step-parent.  This conclusion was recently made even more forcefully by the B.C. Court… Continue Reading

Would Cinderella Inherit?

Posted in Estate Litigation
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If Cinderella had not married a prince, she might have cared a bit more about her legal status as a stepchild to her evil stepmother.  It is common ground that the relationships between stepparents and stepchildren can be difficult.  Vince Dixon of the Chicago Tribune recently provided sage guidance on how to mitigate some of those… Continue Reading