I am pleased to announce that Parveen Shergill has joined our firm. Parveen was called to the bar in 2015, after having served as a judicial law clerk for the Saskatchewan Court of Queen's Bench. She has extensive litigation experience with a leading regional full-service firm, and then with a leading insurance defense firm. She now practices primarily in estate planning and administration, estate litigation and dispute resolution.  Parveen is also fluent in Panjabi.  ..read more

In Tom v. Tang, 2023 BCCA 221, released in June, 2023, the British Columbia Court of Appeal clarified that in a wills variation proceeding the Court applies an objective standard when considering a will maker’s reasons for disinheriting a child or treating children unequally. Earlier Court of Appeal decisions have often been interpreted as applying a more subjective approach to a will-maker’s reasons, allowing a court to uphold disinheritances or significantly unequal treatments of adult children if the will-maker provided reasons that were valid (in that they were based on true fact) and rati ..read more

  A recent change to British Columbia’s Family Law Act provides greater protection for inheritances from claims of spouses on the breakdown of a marriage or marriage-like relationship. The basic structure of our Family Law Act provides that some assets are “included property” in the division of property and other assets are “excluded property.” In most cases, included assets are divided equally between spouses following the breakdown of the marriage or marriage-like relationship, and excluded property is, well, generally excluded from the division. The court may in some circumstances devi ..read more

The Continue Legal Education Society of British Columbia has published a new manual entitled Estates Disputes in British Columbia: A Litigator's Guide. The Chapters are: 1.  Initial Considerations in Estate Disputes 2.  Conflict of Laws in Estate Disputes 3.  Resolving Estate Disputes through Mediation 4.  Proceeding with Estate Litigation 5.  Validity of Wills Disputes 6.  Interpretation, Rectification, and Construction of Wills Disputes 7.  Curing a Defective Will 8.  Wills Variation Claims 9.  Disputes Regarding Attorneys 10.  Disputes ..read more

The British Columbia Law Institute has recently publish Undue Influence Recognition and Prevention: A Guide for Legal Practitioners together with A Reference Aid.  In 2011, the BCLI published Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide in contemplation of changes to our succession law that would in some cases make it easier to challenge wills on the grounds of undue influence. The purpose was to assist lawyers and notaries in recognizing indicia of undue influence and forestalling the exercise of undue influence in respect of will ..read more

 When assisting clients in creating trusts to benefit their children, I am sometimes asked about potential claims that a child’s spouse might make to trust assets if there is a breakdown of the child’s marriage or marriage-like relationship. Typically, the parent is concerned that if she puts assets into a trust to benefit her children, the trusts in fact benefit the children and not future ex-spouses of any child. I can’t give a definitive answer to that question, but a recent decision provides some comfort to parents creating trusts for their children, provided that the trust does not g ..read more

Last month, I wrote that the courts in British Columbia are reluctant to interfere with a trustees discretion when the trust instrument gives the trustee a wide discretion to make distributions to beneficiaries.  I used the case of Re Zaleschuk as an illustration of the deference courts often show to the exercise of a discretion. But,  as you will see below, there are limits to a court's deference to trustees, especially when the trustees prefer their own interest. In Ghag v. Ghag, 2021 BCCA 106, Madam Justice Griffin set out the principles as follows: [47]    &n ..read more

When a trustee or other fiduciary profits from a breach of their obligations, the court may award the profits to beneficiaries. This discourages trustees from wrongdoing,  and is referred to as disgorgement. The principle is illustrated by a British Columbia Supreme Court decision earlier this year. In Chung v. Chung, 2022 BCSC 1592, Mr.  Justice Taylor imposed a constructive trust over the fiduciary’s residence and order him to pay occupational rent to the plaintiff in order to disgorge the benefit the fiduciary received through his breach of trust. The plaintiff, Jae Chung, and the ..read more

  Discretionary trusts are often drafted broadly permitting the trustees “absolute and uncontrolled discretion.” This may be so, even when the will maker or settlor had in mind creating a benefit for one beneficiary. Courts are reluctant to interfere with the trustee’s discretion in such cases, as long as the trustee is acting reasonably and in good faith. In a recent case, Re Zaleschuk, 2022 BCSC 943, Justice A. Ross declined to remove trustees who had refused various requests for funds made by a beneficiary’s mother on behalf of the beneficiary. After Kenneth Zaleschuk (“Kenneth Sr.”) w ..read more

My friend and colleague Braeden Rahn sent me these photographs he took of Parliament House, where the Supreme Courts of Scotland sit, and the High Court of Judiciary, both in Edinburgh, Scotland. Braeden is a law student at the University of Victoria and a paralegal at Geoffrey White Law Corporation in Kelowna. As is evidenced by this photograph he sent me of the Advocate pub, also in Edinburgh, he does find time for dinner.  ..read more