Canada Case Law

Carew (Estate of) v. Carew

Court

Supreme Court of Nova Scotia

The Estate is the recorded owner and qualifies as landlord under the OTA; the respondent occupies 23 Railroad Street without legal title or rent and is overholding; the Complaint under the OTA was proved and an Order for Possession was properly granted, subject to a reasonable vacate period and without extinguishing any separate probate or proprietary claims the respondent may bring.

Source excerpt

• Order for possession
• Overholding tenants act
• Estate administration
• Occupancy disputes
• Constructive trust
• Unjust enrichment

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Rehak v. MacDougall

Court

British Columbia Court of Appeal

The chambers judge did not commit reversible error: she acted within her discretion to determine the petition summarily, found the attesting witnesses credible and their evidence outweighed an equivocal 60% forensic opinion, and correctly concluded the alleged suspicious circumstances were not sufficiently well grounded to displace the statutory presumption of validity; accordingly the will was properly pronounced in solemn form and the appeal is dismissed.

Source excerpt

• Proof of will in solemn form
• Suspicious circumstances and burden of proof
• Summary disposition on affidavit evidence
• Handwriting expert evidence
• Attesting witness credibility

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Sumner v. Siemens

Court

Supreme Court of British Columbia

Leave under s.151 WESA was granted because the applicant is a specified person who gave required notice and made reasonable efforts to have the executor act, is acting in good faith, and has raised an arguable case—based on evidence of possible incapacity and undue influence and the presumption of resulting trust regarding gratuitous transfers—such that pursuit of the claim may be necessary to protect the estate; the court must not resolve contested credibility at the leave stage and the defendant's inaction in obtaining probate would otherwise prevent the applicant from pursuing variation re…

Source excerpt

• Leave to sue on behalf of estate
• Resulting trust
• Undue influence
• Capacity
• Joint tenancy and survivorship
• Variation of wills

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Hickey v. Hickey

Court

Supreme Court of Nova Scotia

The settlement required only that an independent appraisal be provided and that the respondent consider any offer from the applicant and respond by the stated deadline; the respondent provided the appraisal, considered the applicant's May 28 offer (and communicated a position by the deadline), and was not obliged to accept the offer; the evidence did not establish bad faith by the respondent; therefore the enforcement application fails and is dismissed with costs to the respondent.

Source excerpt

• Enforcement of settlement agreement
• Settlement terms
• Interim injunction
• Offers and counter-offers
• Fiduciary duty of personal representative
• Costs

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Christink v. Black

Court

Supreme Court of British Columbia

The court ordered the two wills variation actions to proceed together in Victoria, but refused to join the related life insurance action, which will be tried separately.

• Wills variation (s.60 wesa)
• Beneficiary designation
• Capacity
• Undue influence
• Standing (s.151 wesa)
• Consolidation of proceedings

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Wade v. Wade

Court

Supreme Court of Nova Scotia

The court found the sureties were induced to enter and to continue the Security by misrepresentations of the proctor and by the principal's conduct, making it unconscionable to hold them to the Security; alternatively the Security was not binding because Janice and Mark did not obtain independent legal advice in circumstances involving undue influence and substantial financial exposure. Accordingly the application to compel payment by the sureties was dismissed and the sureties were relieved.

Source excerpt

• Payment on personal bond
• Removal of surety
• Independent legal advice
• Undue influence and unconscionability
• Misrepresentation by proctor
• Accounting and contempt

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Hart Estate (Re)

Court

Supreme Court of British Columbia

The court gave effect to only the initialed handwritten alterations to Derek Jason Hart’s will under s. 58 WESA, and refused the uninitialed changes.

• Will alterations
• Section 58 wesa curative power
• Testamentary intention (deliberate/fixed and final)
• Hearsay principled exception
• Estate costs
• Will-alterations

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Kasper v. Collins

Court

Supreme Court of British Columbia

The court dismissed a s. 58 WESA application to give effect to an unsigned draft will, finding the applicant did not prove settled testamentary intentions.

• S.58 wesa
• Curative power
• Testamentary intention
• Material time for intention
• Probate challenge
• Costs from estate

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Gill v. Gill

Court

British Columbia Court of Appeal

Appeal dismissed from an order revoking probate for failure to give effective notice under WESA s. 121 and Rule 25-2(5).

• Notice requirements for probate applications
• Deemed delivery under court rules
• Rebuttable presumption of delivery
• Reasonable efforts / due diligence to notify
• Revocation of grant of probate
• Wesa s.121 and rule 25-2(5)

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Chambers v. Pace

Court

Supreme Court of Nova Scotia

Applicant's undue influence allegation was entirely without evidentiary foundation and was pursued despite uncontradicted affidavits and an unaccepted settlement offer; that conduct constituted an exceptional circumstance under Rule 77.03(2) justifying an award of solicitor and client costs to the respondent, but HST cannot be awarded on legal fees and is only recoverable on disbursements actually paid; accordingly solicitor-client costs of fees $6,236.25 plus disbursements $550.88 and HST on disbursements $82.63 (total $6,869.76) were awarded against the applicant.

Source excerpt

• Undue influence
• Solicitor and client costs
• Tariff a
• Hst on costs
• Settlement offers
• Civil procedure rule 77

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