Canada Case Law

Goucher v. McCulley

Court

Supreme Court of Nova Scotia

The draft will, though unsigned and unwitnessed, was declared valid under s.8A because the applicants discharged the onus on a balance of probabilities by adducing substantial, complete and clear evidence (lawyer's contemporaneous instructions, professionally drafted document containing a revocation clause, corroborating evidence from caregivers and daughters, and clear evidence of intention to sign) establishing a deliberate and fixed testamentary intention to dispose of the estate as set out in the draft; accordingly the draft will operates to revoke the 2014 will.

Source excerpt

• Section 8a wills act - dispensation of formalities
• Testamentary intention
• Revocation of prior will
• Corroboration of interested witnesses (evidence act s.45)
• Capacity and undue influence

Read case analysis

Jiang v. Piccolo

Court

Supreme Court of British Columbia

The court granted Ms. Jiang leave under s. 151 WESA to sue on behalf of Donald Piccolo’s estate, finding reasonable efforts, good faith, and necessity or expediency.

• Leave to commence proceedings (s.151 wesa)
• Derivative/representative actions
• Variation of wills
• Capacity and undue influence
• Conversion/misappropriation of estate property
• Discovery and implied undertaking

Read case analysis

Higgs v. Lear

Court

Supreme Court of British Columbia

Family property dispute over a long marriage, excluded property claims, pension valuation and alleged dissipation of trust funds ended in equalization adjustments and costs for the claimant.

• Division of family property
• Excluded property (fla s.85)
• Unequal division for significant unfairness (fla s.95)
• Spousal trust and poa transactions
• Dissipation of assets and breach of restraining order
• Valuation and capitalization of pensions/annuities

Read case analysis

Lee v. Lee Estate

Court

Supreme Court of Nova Scotia

The court found a binding settlement existed based on clear instructions to counsel, correspondence and email exchanges reflecting agreement on all essential terms; counsel had authority to settle, and the essential terms (monetary payment, payment within 30 days, dismissal without costs, and a confidentiality obligation with a penalty for the applicant) were sufficiently certain to be declared and enforced and incorporated into an order without requiring a separately drafted non-disclosure agreement.

Source excerpt

• Enforcement of settlement agreement
• Capacity and undue influence
• Confidentiality/non-disclosure agreement
• Costs

Read case analysis

Winstanley v. Winstanley

Court

Supreme Court of British Columbia

In this estates dispute, the court held that jointly held funds passed by survivorship to the defendant, except for $40,000 the defendant had agreed to pay the plaintiff.

• Presumption of advancement
• Joint accounts
• Right of survivorship
• Resulting/constructive trust
• Capacity and undue influence
• Joint-accounts

Read case analysis

Re: Elsie Jones

Court

Supreme Court of British Columbia

The court held that an estate file was relevant to a petition over a conveyance, but it remained protected by solicitor-client privilege and was not producible.

• Solicitor-client privilege
• Confidentiality
• Relevance and disclosure (rule 26)
• Capacity and undue influence
• Committee powers under patients property act
• Solicitor-client-privilege

Read case analysis

TimberWest Forest Corp. (Trustee of) v. Schmidt

Court

Supreme Court of British Columbia

The court refused to decide a pension death-benefit dispute summarily, finding that conflicting evidence on spouse status, beneficiary designations, and capacity required a trial.

• Interpleader
• Spousal entitlement under pension statute
• Designation of beneficiary
• Capacity and undue influence
• Definition of spouse
• Family relations act claim

Read case analysis

Baumgartel Gould v. DaCosta

Court

Supreme Court of British Columbia

The District Registrar cancelled a solicitor-client fee settlement agreement because the client did not clearly understand he was waiving statutory review rights.

• Fee agreement review
• Fairness and reasonableness of fee agreements
• Cancellation of settlement agreement
• Registrar review of solicitor's bills
• Capacity and undue influence
• Fee-agreement-review

Read case analysis