The Supreme Court Civil Rules provide that a proceeding to prove the validity of a will must be started by either a notice of application, if there is an existing proceeding in which it is appropriate to do so, or by a petition. This is set out in Rule 25-14(4). This is a significant change to the practice. Prior to the changes to the Rules with the coming into force of the Wills, Estates and Succession Act, contested proceedings to prove a will were brought by a notice of civil claim. A proceeding begun by Notice of Civil Claim is referred to as an “Action.” The difference is that an Action has pretrial procedures such as disclosure of documents, and oral examinations for discovery, and ultimately a trial with witnesses testifying in court. In contrast, a notice of application or petition does not have the pretrial disclosure process and the evidence is by way of affidavits. Read More
Estate planning for people with assets and connections to both the United States and British Columbia is fraught with potential legal and tax pitfalls. It is important to get tax and legal advice with respect to the implications on both sides of the border. This is illustrated by the recent decision concerning the former NHL coach Pat Quinn in Quinn Estate, 2018 BCSC 365. Read More
I have the honour of speaking at the Continuing Legal Education Course on Estate Litigation Basics, at the Pan Pacific in Vancouver on April 13, 2018. I am speaking about evidence in estate litigation. My paper is co-authored (or will be when it’s done) by Taeya Fitzpatrick of my firm.
The course is chaired by Lauren Blake of Legacy Tax and Trust Lawyers, Vancouver. The other faculty are:
Kimberly Rule of our firm will be one of the group leaders at the two-day estate-administration workshop, “Death is Not the End.” The course will be held on March 8th and 9th at the Pan Pacific Hotel, 999 Canada Place, Vancouver, B.C. For further course information and registration, see the Continuing Legal Education website here.
There is no shortage of court cases in British Columbia of informal family arrangements going awry. A parent may assist a child and the child’s spouse in purchasing a home with the expectation of sharing the home. The idea may make good sense. Unfortunately, neither side may consider what will happen if the arrangement doesn’t work out. In the case I am about to write about, MacKinnonv. Donauer, 2017 BCCA 437, for example, Madam Justice Newbury, noted at paragraph 3, Read More
The British Columbia Court of Appeal confirmed that notaries public are not permitted to draw wills that create life estates or trusts in a decision released December 21, 2017. In British Columbia, generally only lawyers may practice law, which includes drawing wills for a fee. However, members of the Society of Notaries Public of British Columbia are also permitted to draw wills for a fee, but there are restrictions on the types of wills they may draw. Specifically, as set out in section 18 of the Notaries Act, notaries may, Read More
The Supreme Court of Canada rendered it judgment in Cowper-Smith v. Morgan, 2017 SCC 61, this last Thursday, December 14, 2017. The main legal issue is whether a person who relies on a promise that he will receive property to his detriment may become entitled to the property even if the person who made the promise did not own the property at the time she made the promise. Let me explain. Read More
The Canadian Foundation for Advancement of Investor Rights and the Canadian Centre for Elder Law have published their Report on Vulnerable Investors: Elder Abuse, Financial Exploitation, Undue Influence and Diminished Mental Capacity. The report is co-authored by Marian Passmore and Laura Tamblyn Watts.
As set out in the Executive Summary: Read More
This is my fourth post, on the decision in Banton v. Banton, 1998 CanLII 1496, a case involving Muna Yassin who married George Banton when she was 31 and he, 88. The dispute was between Ms. Yassin in George Banton’s five children. I described in my first post Mr. Justice Cullity’s finding that two wills Mr. Banton made leaving his estate to Ms. Yassin were invalid on the grounds that he did not have the requisite mental capacity to make the wills, and that she exercised undue influence over him. In my second post, I outlined Mr. Justice Cullity’s finding that Mr. Banton’s marriage to Ms. Yassin was nevertheless valid, which had the effect of revoking the will Mr. Banton made before the marriage in which he left the residue of his estate to his five children. Read More