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Court of Appeal allowed leave in part under s. 151 WESA, finding an arguable resulting-trust claim over a $200,000 transfer, but upheld refusal on the POA misuse claim.
The Agreement executed contemporaneously with the 2014 will was not a testamentary instrument because it created obligations that gave rise to a secret trust enforceable in equity and thus operated dehors the Wills Act; accordingly it was not revoked by the 2015 will. The Court did not decide whether the secret trust was properly constituted or enforceable and allowed the appeal, remitting the remaining issues for further consideration as previously contemplated.
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Because the alter‑ego trust was created, signed and fully constituted before execution of the will, and the trustee had accepted fiduciary obligations with communication and acquiescence established, the clause operated as a valid secret/semi‑secret trust enforceable in equity; accordingly paragraph 3(d) authorizes the executor to transfer the residue to the trustee and no partial intestacy results.
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The court dismissed an application to dismiss a deceased plaintiff’s action for want of prosecution, ordered a third-party litigation representative within three months, and awarded costs from the estate.
The court dismissed Ms. Coyne’s expense claim, approved the executor’s accounts, and allowed Mr. Humphries an executor’s fee of $2,400 plus taxes with a small adjustment.
The court held Article 27 of Oak Bay Marina Ltd.’s articles did not create a trust for the petitioners, so their claims to the preferred shares failed.
The disputed handwriting created sufficient ambiguity such that litigation was necessitated by the deceased's conduct, and Krista Scott had reasonable grounds to contest; Ms. Smith acted reasonably as administratrix and is entitled to indemnity from the Estate on a solicitor-and-client basis; Ms. Scott is entitled to party-and-party costs from the Estate because the litigation was not frivolous but her conduct impeded administration and she primarily advanced personal interests; calculate Tariff A on the court-assessed amount in issue (~$78,000) to yield $17,750, add $8,000 per diem to reach…
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The Court of Appeal dismissed an estate’s challenge to a conditional donation agreement, holding it created an inter vivos trust and was not testamentary.
The presumption of resulting trust arising from gratuitous transfers was rebutted on the facts: the deceased intended that the beneficial right of survivorship in the joint accounts be distributed equally to his five children on his death; legal title holders held the beneficial right of survivorship in trust for the Children. The appeal dismisses the respondent charity's challenge to the trial finding. The court also held that the estate trustee is entitled to be indemnified from the Estate for trial and appellate costs not recovered from Watch Tower and that blended costs orders are permiss…
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The Court of Appeal upheld probate of a will, holding that presumptions of due execution and knowledge and approval could be relied on absent suspicious circumstances.
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