Canada Case Law

Wols v. Funk

Court

Supreme Court of British Columbia

Court varied the Will under s.60 WESA because, on an objective assessment, the testator failed to make adequate provision for his disabled child; government benefits did not negate the moral obligation; the defendants' assistance was modest and largely compensated; balancing testamentary autonomy and duty to child required increasing the child's share while preserving a modest benefit to the defendants.

Source excerpt

• Wills variation
• Testamentary autonomy
• Adequate provision under s.60 wesa
• Disability and dependency
• Costs

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Calvert v. Menzies

Court

Supreme Court of British Columbia

The court found John Menzies breached his POA duties and exercised undue influence over a $290,000 deposit, awarding the estate $403,100 in damages.

• Breach of fiduciary duty under poa act
• Statutory record-keeping obligations
• Presumption and rebuttal of undue influence
• Accounting by attorney
• Occupational rent
• Punitive damages

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Cepuran v. Carlton

Court

Supreme Court of British Columbia

The court ordered a trial issue on Ana Cepuran’s capacity, directed two geriatric psychiatric examinations, and consolidated related trust and nullification petitions.

• Committeeship
• Alter ego trust
• Revocation of enduring power of attorney
• Capacity assessment
• Parens patriae jurisdiction
• Waiver of solicitor‑client privilege

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Briggs Estate

Court

Supreme Court of British Columbia

Estate application about disclosure, a disputed $4,000 withdrawal, headstone costs, legal fees, and executrix remuneration. The court dismissed or deferred most requested relief and directed a passing of accounts.

• Passing of accounts
• Executor remuneration
• Disclosure of pre-death financial records
• Power of attorney duties
• Personal representative liability
• Restriction/capping of legal fees

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Sales v. Fisher

Court

Supreme Court of British Columbia

An attorney under an enduring power of attorney obtained orders for a solicitor’s file and related communications, while preserving solicitor-client privilege.

• Enduring power of attorney
• Joint retainer
• Production of solicitor's file
• Solicitor-client privilege waiver
• Authority of attorney to access records
• Costs for privilege review

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British Columbia (Public Guardian and Trustee) v. Ferrier

Court

Supreme Court of British Columbia

The court found Mrs. Marilyn Ferrier incapable of managing her affairs, terminated the enduring power of attorney, and appointed the Public Guardian and Trustee as committee.

• Termination of enduring power of attorney
• Appointment of committee
• Declaration of incapacity
• Fiduciary duties of attorneys
• Misuse of funds
• Special costs

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Tawil v. Lawen

Court

Supreme Court of Nova Scotia

Plaintiffs possess sufficient prospective legal interest to have standing because their TFMA claim makes the determination of whether the conveyed properties form part of the estate directly relevant to their rights, and the executor has declined to pursue the challenge; therefore the defendant's summary judgment motion dismissing their action for lack of standing is dismissed.

Source excerpt

• Standing
• Testators family maintenance act
• Enduring power of attorney
• Validity of conveyances
• Executor duties
• Summary judgment - question of law

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