Canada Case Law

Marshall Estate

Court

Supreme Court of British Columbia

On the balance of probabilities the court accepted contemporaneous solicitor records, multiple private meetings, a geriatric expert report and medical records showing the testator understood the nature and consequences of a will and the assets and natural objects of bounty; there was no credible evidence of domination or undue influence by beneficiaries and no well-grounded suspicious circumstances to rebut the presumption of validity; summary determination was therefore appropriate and the 2015 will was proven in solemn form and probate granted to the named executors.

Source excerpt

• Testamentary capacity
• Undue influence
• Solemn form probate
• Conversion of petition to action/hybrid procedure
• Costs and indemnity

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DK v Minister of Employment and Social Development

Court

Social Security Tribunal of Canada

The Minister applied an irrelevant and incorrect test (requiring "exceptional or extenuating circumstances" and incapacity within the 90‑day limit), thereby failing to act judicially; on the correct four‑factor test the appellant established a reasonable explanation (long‑standing mental incapacity), a continuing intention to seek reconsideration, a reasonable chance of success on incapacity/retroactivity, and no prejudice to the Minister — therefore appellant is entitled to an extension of time and the matter is remitted to the Minister to decide retroactivity based on incapacity.

Source excerpt

• Reconsideration deadline
• Extension of time
• Incapacity/capacity
• Retroactivity of benefits
• Procedural fairness
• Discretionary decision review

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Shieh v. Shieh Estate

Court

Supreme Court of British Columbia

The court dismissed a s. 58 WESA application, finding the disputed document did not prove Catherine Shieh’s fixed testamentary intention or authenticity.

• S.58 wesa curative order
• Testamentary intention
• Authenticity of testamentary document
• Testamentary capacity
• Handwriting expert evidence
• Codicil

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Killam v. Killam

Court

Supreme Court of British Columbia

The court struck a beneficiary’s challenge to an alter ego trust for lack of standing, holding that any claim lay with the settlor’s estate and required s. 151 WESA leave.

• Standing
• Alter ego trust validity
• Declaratory relief
• Section 151 wesa
• Strike claim (rule 9-5)
• Alter-ego-trust

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Wicklund v. Denis and Yvone Blakely 2015 Joint Partner Trust

Court

Supreme Court of British Columbia

The court upheld a 2015 trust amendment, finding Yvonne Blakely had capacity, no suspicious circumstances or undue influence were proven, and the plaintiffs’ claims were dismissed.

• Inter vivos vs testamentary trust
• Testamentary capacity
• Suspicious circumstances
• Undue influence
• Hearsay admissibility
• Business records exception

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Pulez (Re)

Court

Supreme Court of British Columbia

The court dismissed an interim application for visitation and telephone contact, holding that the Representation Agreement Act’s statutory objection scheme should be used instead of parens patriae relief.

• Representation agreement
• Appointment of committee
• Visitation rights
• Statutory objection procedure (s.30)
• Public guardian and trustee
• Interim relief

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M.R. v. Mishra

Court

Court of Appeal for Ontario

The appeal was dismissed as moot because admitted fresh evidence established that the appellant had regained and maintained capacity to consent to treatment, eliminating any live controversy; the court found no broader public importance to justify exercising discretion to hear a moot appeal.

Source excerpt

• Capacity to consent to treatment
• Mootness doctrine
• Fresh evidence on appeal
• Consent and capacity board review

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Farmer v. Farmer

Court

Court of Appeal for Ontario

The Court upheld the application judge's findings that Billie lacked capacity, that the appellant was not a credible witness, that the alleged negotiated honorarium and many charges were not legitimately authorized, and that the appellant failed to keep proper accounts and engaged in dishonest and negligent administration; consequently he was disentitled to compensation, ordered to repay specified amounts and to pay costs, and the appeal was dismissed.

Source excerpt

• Accounting
• Executor compensation
• Attorney for property compensation
• Capacity to instruct
• Credibility findings
• Disgorgement/restitution

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Wilson Estate (Re)

Court

Supreme Court of British Columbia

The court proved Joan Gwendoline Wilson’s 2021 will in solemn form, finding testamentary capacity and no undue influence, and declined to convert the petition to an action.

• Testamentary capacity
• Proof of will in solemn form
• Undue influence
• Conversion of petition to action
• Costs of probate proceedings
• Testamentary-capacity

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Innes v. Innes

Court

Supreme Court of British Columbia

La Cour suprême de la Colombie-Britannique rejette la déclaration de séparation, confirme une convention matrimoniale de 2000 et ordonne des mesures de traçage sur certains biens.

• Marriage agreement enforcement
• Separation capacity
• Resulting trust
• Equitable tracing
• Interpretation of prenuptial/marriage agreements
• Application of fra s.61 and s.65

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