Canada Case Law

Dhillon Estate (Re)

Court

Supreme Court of British Columbia

The Opposing Children pursued serious, unsubstantiated allegations of undue influence, lack of testamentary capacity and elder abuse despite early disclosure of the solicitor's detailed file that dispelled those suspicions; their conduct was unreasonable and reprehensible, so costs follow the event and special costs are warranted to punish and deter that conduct. The Beneficiary Children and the Administrator recover their costs as special costs from the Opposing Children, to be assessed.

Source excerpt

• Probate
• Will validity
• Testamentary capacity
• Undue influence
• Special costs
• Costs follow the event

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Aulinger v. Oda

Court

British Columbia Court of Appeal

Because the 1995 joint handwritten will and surrounding circumstances created ambiguities that reasonably required litigation to determine validity, and because the litigation was necessitated by the testator's conduct, the court exercised the modern approach to estate costs and ordered that all parties recover reasonable indemnity costs from the estate.

Source excerpt

• Validity of will
• Indemnity costs
• Standing to vary a will
• Probate
• Joint wills

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Elizabeth Casey Cooke Family Trust v. Dioguardi

Court

Court of Appeal for Ontario

The Ontario Court of Appeal dismissed an appeal in a solicitor-negligence case, holding the claim was an abuse of process because the will error could have been addressed during probate.

• Probate
• Rectification of wills
• Abuse of process
• Collateral attack
• Certificate of appointment of estate trustee
• Solicitor negligence

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Thomson Estate (Re)

Court

Supreme Court of British Columbia

The respondent created both a serious perceived conflict by claiming an unregistered beneficial interest in estate property (the 6% Agreement and receipt of sale proceeds) and an actual conflict by defending both himself and the estate in ongoing litigation; those conflicts create a real danger to estate value and hamper administration, warranting his removal under WESA ss.158-159 and appointment of the alternate as substitute personal representative.

Source excerpt

• Removal of executor/personal representative
• Conflict of interest
• Probate
• Estate administration
• Disclosure and accounting
• Undue influence/alleged backdating

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Aulinger v. Oda

Court

British Columbia Court of Appeal

The Court of Appeal allowed the appeal, holding that a 1995 joint will was two separate wills and that Daniela Siebert’s 2019 will did not revoke Johannes Siebert’s will.

• Joint wills
• Mutual wills
• Revocation of wills
• Interpretation of wills
• Fresh evidence (palmer test)
• Constructive trust

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Woodard v. Hewitt

Court

Supreme Court of British Columbia

The court dismissed the petitioner's applications for immediate payment, to set aside Justice Baker's order, and for transcripts because service was ineffective (failure to serve the entered substituted service order under Rule 4-4(2)), there was no misrepresentation warranting setting aside, and no legal basis for transcripts; the court ordered limited document production focused on communications and calculations regarding non-resident tax withholding, proof of payment of the $364.88 invoice, and subledger/calculations related to the Sage Bay sale (to be produced by respondent and Ms. Clark…

Source excerpt

• Executor removal
• Accounting
• Probate
• Substituted service
• Security for costs
• Non-resident withholding tax

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Lavictoire v. Schwarz

Court

Supreme Court of British Columbia

The court held that Zofia Rymgaillo lacked testamentary capacity when she made her 2012 will and declared the will invalid, denying proof in solemn form.

• Testamentary capacity
• Suspicious circumstances
• Burden of proof in probate
• Admissibility of expert evidence
• Hearsay - principled exception
• Role of drafting solicitor

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Adeli-Najafi v. Adeli-Najafi

Court

Supreme Court of British Columbia

The court set aside a dismissal for want of prosecution, finding the estate was not at fault for missing the chambers hearing and that justice favoured a merits hearing.

• Want of prosecution
• Rule 22-1(3) reconsideration
• Rule 22-7(7) dismissal for want of prosecution
• Substituted service
• Withdrawal of counsel (rule 22-6)
• Litigation guardian

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Halani Estate (Re)

Court

Supreme Court of British Columbia

The court passed interim trust and estate accounts for 2022–2025, approved full-indemnity special costs, and dispensed with the respondent’s signature on the orders.

• Passing of accounts
• Trust administration
• Estate administration
• Special costs (full indemnity)
• Remuneration
• Rule 25-13

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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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