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Sabey Rule Blog

Our Kelowna lawyers represent clients throughout the Okanagan Valley and the rest of BC. Our practice specializes in wills and estate planning, estate administration, estate disputes, commercial business law and real estate transactions. Our blog is a collection of articles written by our lawyers on a variety of frequently asked law questions.

Hubschi Estate
Hubschi Estate

The decision in Hubschi Estate, 2019 BCSC 2040, illustrates three significant points concerning the application of section 58 of British Columbia’s Wills, Estates and Succession Act, which allows the Supreme Court of British Columbia to give effect to a document or record that does not…

Geluch v. Geluch Estate
Geluch v. Geluch Estate

A recent decision, Geluch v. Geluch Estate, 2019 BCSC 2203, illustrates that a court may find part of a will to be valid and another part invalid. To make a valid will, the will maker must have the capacity to understand the nature and effect…

Part 3 of the Health Care (Consent) and Care Facility (Admission) Act is Now in Force
Part 3 of the Health Care (Consent) and Care Facility (Admission) Act is Now in Force

Part 3 of the Health Care (Consent) and Care Facility (Admission) Act came into effect on November 4, 2019. Part 3 sets out the criteria for an adult to be admitted into a care facility. There are three ways that a person may be admitted into a care…

Separation Without Termination: Robledano v. Queano
Separation Without Termination: Robledano v. Queano

Can you separate from your common-law spouse without terminating the relationship? Apparently, according to the British Columbia Court of Appeal decision in Robledano v. Queano, 2019 BCCA 150. Spousal status is often critical in estate disputes. A “spouse” as that term is defined in the…

Volovsek v. Donaldson
Volovsek v. Donaldson

The provisions of the Wills, Estates and Succession Act (“WESA”) allowing a spouse or child to apply to vary a will if the will-maker has not made adequate provision for the spouse or child may be avoided by the will maker settling a trust during…

Amendments to section 151 of WESA
Amendments to section 151 of WESA

Section 151 of the Wills, Estates and Succession Act (“WESA”), was amended effective September 16, 2019. This section allows someone who is not the deceased’s personal representative to apply to court to make or defend a claim on behalf of the deceased. The amendments make…

How to Properly Document a Transfer into Joint Tenancy
How to Properly Document a Transfer into Joint Tenancy

I have preached caution about the use of joint tenancies as an estate-planning tool to transfer wealth often from a parent to a child, or sometimes to some other relative or friend. One of the first blog posts I wrote back in September, 2005, was…

Supreme Court Civil Rules Amendments Change Procedures in Estate Litigation
Supreme Court Civil Rules Amendments Change Procedures in Estate Litigation

When you complete your estate planning with a lawyer, you will generally receive a reporting letter, which explains the work completed. The letter will also typically contain cautions against doing certain things like writing on or marking the Will or removing the staples from the…

Proposed Amendments to the Wills, Estates and Succession Act
Proposed Amendments to the Wills, Estates and Succession Act

The British Columbia government has introduced changes to the Wills, Estates and Succession Act. The Attorney General Statutes Amendment Act, 2019, if enacted, will include changes to sections 16, 61, 130, 131, 151, 152 and 155. I will highlight some of the changes to sections 151 and…

Supreme Court of Canada Overturns B.C. Court of Appeal Decision in S.A. v. Metro Vancouver Housing Corp
Supreme Court of Canada Overturns B.C. Court of Appeal Decision in S.A. v. Metro Vancouver Housing Corp

The Supreme Court of Canada, in S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, overturned the decision of the British Columbia Court of Appeal, a decision I wrote about here. This case deals with the use of a discretionary trust to provide benefits for…

Interest on Legacies
Interest on Legacies

In British Columbia, if a legacy is not paid within one-year of the will-maker’s death, the beneficiary is entitled to interest at a rate of 5% per year from the first anniversary of the date of death. This rule applies unless the will provides that…

Ontario Divisional Court Overturns Decision in Re Milne Estate
Ontario Divisional Court Overturns Decision in Re Milne Estate

On January 24, 2019, the Ontario Superior Court of Justice, Divisional Court overturned the decision of the Application Judge in Re Milne Estate. The Divisional Court decision is reported at 2019 ONSC 579 (CanLII). The Application Judge’s refusal to provide Certificate of Appointment of Estate Trustee for…

Moore v Sweet
Moore v Sweet

On November 23, 2018, the Supreme Court of Canada released its decision in Moore v. Sweet, 2018 SCC 52, in which the majority imposed a remedial constructive trust on the proceeds of a life insurance policy in favour of the life insured’s former spouse. The life…

Panda Estate
Panda Estate

I wrote about the Ontario decision in Re Milne Estate, in which Mr. Justice Dunphy refused to grant probate in respect of two wills on the grounds that in his view they were void for uncertainty of subject matter. A husband and wife each made two wills, one intended…

Re Milne Estate
Re Milne Estate

I suspect that a recent decision from the Ontario Superior Court of Justice is causing some consternation among the Ontario estate planning bar. In Re Milne Estate, 2018 ONSC 4174, the Court held that a will was void for uncertainty of subject matter and could not…

Bare Trustee Found to be “Particular Individual” under the Excise Tax Act: New Housing Rebate Denied
Bare Trustee Found to be “Particular Individual” under the Excise Tax Act: New Housing Rebate Denied

Her Majesty the Queen v. Cheema, 2018 FCA 45 (CanLII) Often home buyers need to rely on a guarantor in order to allow them to qualify for the mortgage. In such cases, a lender often requires the guarantor to be registered as an owner of…

Sharma v Sharma
Sharma v Sharma

Prem Lata Sharma is suing her sisters Raj Rani Sharma and Simmi Sharma. She is seeking to vary their mother Rama Rani Sharma’s will, pursuant to which she was disinherited, and she is also asking the court to declare that they hold title to their…

Court of Appeal Upholds Decision in Sato v. Sato
Court of Appeal Upholds Decision in Sato v. Sato

In Sato v. Sato, 2018 BCCA 287, the British Columbia Court of Appeal upheld Mr. Justice Funt’s decision that Hiroyuki Rex Sato was domiciled in British Columbia when he married Makiko Sato on April 30, 2013, although he was living and working in Luxemburg at the time…

Rosas v Toca
Rosas v Toca

In Rosas v. Toca, 2018 BCCA 191, the British Columbia Court of Appeal held that a borrower’s promises to repay a loan modified the original loan agreement, and thereby extended the time during which the lender could file a lawsuit to collect the loan. The…

Land Owner Transparency Act White Paper
Land Owner Transparency Act White Paper

The Government of British Columbia has published a White Paper  setting out draft legislation that would require registration of interests in land in land that do not appear on title. You can read the White Paper here. Comments are due by August 19, 2018, and…

Converting a Petition or Application to Prove a Will into an Action
Converting a Petition or Application to Prove a Will into an Action

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…

Gordon Estate
Gordon Estate

Section 151 of the Wills, Estates and Succession Act permits a beneficiary of a will, or in the case of an intestacy, an intestate successor to apply to court to bring or defend a claim in the name of the personal representative. The conditions for…

Quinn Estate
Quinn Estate

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…

MacKinnon v. Donauer
MacKinnon v. Donauer

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…

B.C. Court of Appeal Confirms that Notaries are Not Permitted to Draw Wills with Life Estates
B.C. Court of Appeal Confirms that Notaries are Not Permitted to Draw Wills with Life Estates

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.…

Transfer of Firearms from an Estate
Transfer of Firearms from an Estate

The Firearms Act defines “transfer” to mean sell, barter, or give. Accordingly, disposition of even a non-registered firearm will involve a “transfer” and will be subject to the applicable laws and regulations. The first thing an executor needs to know is that in Canada a…

Storage of Firearms Left in an Estate
Storage of Firearms Left in an Estate

For many executors the process of administering an estate includes dealing with unfamiliar assets and concerns, and not uncommon among these are the firearms of the deceased and the question how to store these firearms prior to transferring them. While this topic can become complex…

Report on Vulnerable Investors
Report on Vulnerable Investors

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…

Banton v. Banton (Part 4)
Banton v. Banton (Part 4)

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…

Banton v. Banton (Part 3)
Banton v. Banton (Part 3)

In my two previous posts, I’ve written about Mr. Justice Cullity’s decision in Bantonv. 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…

Banton v. Banton (Part 2)
Banton v. Banton (Part 2)

In my post last week, I wrote about Mr. Justice Cullity’s decision in Banton v. Banton, 1998 CanLII 1496 finding that two wills made by George Banton, one dated December 21, 1994 and the other dated May 4, 1995 were invalid. In both wills, Mr. Banton had…

Banton v. Banton (Part 1)
Banton v. Banton (Part 1)

I have recently reread the case of Banton v. Banton, 1998 CanLII 14926, a decision of Mr. Justice Cullity of the Ontario Supreme Court. This case may be referred to as a predatory-marriage case. What interests me most, though, is the interplay of legal issues.…

B.C. Supreme Court Rules Committee Inviting Comments on Proposed Changes to Probate Rules
B.C. Supreme Court Rules Committee Inviting Comments on Proposed Changes to Probate Rules

The Attorney General’s B.C. Supreme Court Rules Committee is requesting comments on proposed changes to the probate rules. You can read the proposed changes here. A couple of the proposed changes caught my eye. One proposed changes to broaden the class of persons who may…

Undue Influence by Inducing False Beliefs: Re: Patterson Estate
Undue Influence by Inducing False Beliefs: Re: Patterson Estate

Undue influence usually implies coercion. Someone may challenge a will or a benefit in a will on the basis that another procured the will or benefit by applying pressure to the will maker. The pressure may be overt threats of violence, or perhaps subtler forms…

Sato v. Sato
Sato v. Sato

Things would be simpler, but not nearly as interesting, if everyone remained in the same place. Hiroyuki Rex Sato, often referred to as Rex, immigrated with his family to British Columbia in 1969. He became a Canadian citizen in 1975. Following his graduation from university,…

Capacity to Marry: Devore-Thompson v. Poulain
Capacity to Marry: Devore-Thompson v. Poulain

Marriage has significant legal implications on the succession of property. Yet, I don’t come across either in my practice or my reading, that many cases where a marriage is challenged on the basis that someone did not have the mental capacity to marry. I certainly…

Bach Estate
Bach Estate

In British Columbia, if you make a gift to one of the two witnesses to your will, or to the spouse of one of the two witnesses to your will, the usual rule is that the gift is invalid. This rule can lead to very…

Johnson v. North Shore Yacht Works Corp.
Johnson v. North Shore Yacht Works Corp.

In British Columbia, a trustee acting in the administration of a trust is generally entitled to be reimbursed for his or her reasonable expenses out of the trust assets. But what if the trustee makes a contract in respect of the trust assets, and there…

Parker v Felgate
Parker v Felgate

My friend and colleague John Poyser sent these photographs of Upper Gloucester Place, Dorset Square, to me. This building was the home of Georgina Annie Stephens Compton, who died on September 2, 1882. Mary Ann Flack, signed Georgina Compton’s will on her behalf, three days…

Hiding Assets in Divorce Proceeding Backfires
Hiding Assets in Divorce Proceeding Backfires

To some extent, the court process depends on the integrity of the people involved, including the parties to a lawsuit, as well as their lawyers. Of course, some people do lie. The process allows for pre-trial document disclosure and examinations under oath. At a trial,…

Bach Estate
Bach Estate

In British Columbia, if you make a gift to one of the two witnesses to your will, or to the spouse of one of the two witnesses to your will, the usual rule is that the gift is invalid. This rule can lead to very…

Committee’s Power to Waive Privilege on Behalf of Patient
Committee’s Power to Waive Privilege on Behalf of Patient

A lawyer must hold all information and file materials obtained in working with a client in strict confidence subject to some limited exceptions, as this information is protected by solicitor-client privilege. The client may waive privilege. But what happens when the client is no longer…

K.L.W v. Genesis Fertility Centre
K.L.W v. Genesis Fertility Centre

Mr. A.B. had serious medical problems throughout his life. He and his wife, K.L.W., wished to have children. He arranged to have his sperm stored by Genesis Fertility Centre, so that his wife could use his reproductive material to conceive a child. He wanted her…

Assets Held in a Discretionary Trust May Affect Some Types of Assistance for Beneficiaries with Disabilities (But Still Often a Good
Assets Held in a Discretionary Trust May Affect Some Types of Assistance for Beneficiaries with Disabilities (But Still Often a Good

I have often suggested to clients with children or other intended beneficiaries of their estates with disabilities that they consider creating discretionary trusts for the beneficiary with a disability if the beneficiary is eligible for British Columbia benefits for persons with disability. For the purpose…

Valentyne Estate v. The Canada Life Assurance Company
Valentyne Estate v. The Canada Life Assurance Company

Kevin Valentyne was driving his car in downtown Vancouver on January 7, 2013. His girlfriend was with him. After receiving a telephone call, he drove to a house, entered it, with his car engine running. He told his girlfriend he would be right back. He…

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