The B.C. Supreme Court found that Yat Hei Law, the mother of Ginny Lam and William Law, left $2.9 million to her son and only $170,000 to her daughter. Justice Maria Morellato ruled the decision was influenced by gender-based preferences. "This bias shaped both the lifetime gifts and the 2018 will," the judge wrote.

In this heart-wrenching legal case, a family's grief over the loss of their daughter, a young RCMP officer, erupted into a fierce courtroom battle over $300,000. The officer’s parents, who had provided the funds to help her purchase her first home, claimed it was a loan. But her spouse insisted it was a gift, a crucial distinction that would determine whether the widow or the parents would keep the money.

When a will is drafted, an executor of the estate is appointed in the will. The executor is essentially assigned to help manage the deceased’s affairs/estate after he or she passes away. The executor may be your lawyer, or alternatively your children, among others. Sometimes, a will-maker appoints co-executors - e.g. two siblings - to determine how the will-maker’s estate ought to be handled. Unfortunately, this can lead to significant challenges once the will-maker passes because the co-executors disagree in how to manage the deceased will-maker’s estate.

It is best to appoint 1 or 3 executors which permits unilateral or majority decision making when it comes to management of the deceased’s Estate.

The recent case of Putman v Putman, 2021 BCSC 1700, discussed the Power of Attorney Act and Representation Agreement Act and the applicable law to the aforementioned legal instruments. In this case, the petitioner, David Putman, and the respondent, Linda Putman, were brother and sister; they were jointly appointed as attorneys pursuant to an enduring power of attorney granted by their mother, Margaret Putman. The respondent has also been appointed as Margaret’s representative pursuant to a representation agreement made pursuant to s. 9 of the Representation Agreement Act, R.S.B.C. 1996, c. 405 (the “RA Act”). The two siblings were unable to agree as to the appropriate medical treatment for their mother and likely more so, how best to deal with valuable real estate owned by their mother; alas, another case where finances get in the middle of sibling relationships.

In March 2020, the world ground to a halt as a result of the COVID-19 pandemic. Offices were shuttered, schools were closed, and in person meetings and gatherings were only permitted for essential purposes. Marilyn Bishop cancelled her appointment at her lawyer’s office to execute her new will. She had given her instructions, reviewed the draft, and made a few minor clarifications. All that remained was to have the will signed and witnessed. Ms. Bishop passed away before she could do so.

Denise, who is the oldest and lives in Ontario, is the child of Mr. Phillip’s first relationship.

Patricia and Jason, who live in B.C., are the children of his second relationship.

Avar, who lives in Trinidad, is the child of his third relationship.

Renee, who lives in B.C., is the child of his fourth relationship,

In rare but difficult circumstances, a lawyer may be ethically required to terminate a retainer agreement with a client. This may arise when issues arise where the lawyer reasonably believes that a client’s comments, wishes, demands, instructions, or otherwise conflict with the lawyer’s professional responsibilities and the appropriate Law Society’s Code of Ethics. In this Province, the Law Society of BC and its Code of Professional Conduct governs the ethical obligations of a lawyer.

It is trite law that the solicitor-client relationship is characterized as a fiduciary relationship: Hodgkinson; Galambos v. Perez, 2009 SCC 48 at para. 36. The nature of fiduciary relationships is summarized in Hodgkinson at 405:

… it is only by having regard to the often subtle differences between these causes of action that civil liability will be commensurate with civil responsibility. For instance, the fiduciary duty is different in important respects from the ordinary duty of care … the presence of loyalty, trust, and confidence distinguishes the fiduciary relationship from a relationship that simply gives rise to tortious liability. Thus, while a fiduciary obligation carries with it a duty of skill and competence, the special elements of trust, loyalty, and confidentiality that obtain in a fiduciary relationship give rise to a corresponding duty of loyalty.

Mr. Justice Edleman, as he is required to do, balanced the interests of the testator and the children and varied the will. The Trial Judge stated as follows:

I am…of the view that a somewhat greater gift to Rose and Samsun is warranted given the clear intentions of Mrs. Tom. I will therefore order specific gifts of $300,000 to each of Rose and Samsun (or Samsun’s estate). The remainder of the estate is to be divided equally between the five siblings or their estates. In my view, this variation strikes the appropriate balance between Mrs. Tom’s clear intent to recognize the role of Samsun and Rose in her final years while meeting her moral obligations to her other children.

Appeal allowed and the Notice of Contention dismissed.

The application judge erred in finding that testator’s liberty interests were engaged by the provisions of the TFMA. The Lawens, as public interest litigants, did not put any evidence before the application judge which would have allowed him to determine that the liberty interests were engaged and, alternatively, even if they were engaged, whether they were in accordance with the fundamental principles of justice.

As the baby boomer generation slowly and sadly passes, unfortunately, they are uncertain about what to do with their family home; particular issues arise when they to leave (or more appropriately, “bequeath”), the family home to some, but not all, of their children.

In this instance, the home owner has a number of options. This article focuses the two most frequent options utilized: joint tenancy and deed of gift.

In a recent Wills & Estate Litigation case: McCulloch v Nociar, 2021 BCSC 1328, the Defendant applied to send the Plaintiff to an independent medical examination (“IME”) with respect to her “alleged allergies, disabilities, and other medical conditions which she alleges requires her to live in specialty housing, in particular a suite (the “Suite”) on property in Surrey, B.C. (the “Property”) owned by the applicant, and to allow access to that Suite to Total Safety Services Inc. to report on the character and conditions which establish it as specialty housing”.

BREAKING NEWS: Plaintiff ordered to an IME in a Wills & Estates Litigation case.