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Wills, Trusts & Estates

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Tuesday, April 18, 2017 @ 11:13 AM

B.C. residents can dial up free legal advice on April 22

The Canadian Bar Association, B.C. branch, is hosting a Dial-a-Lawyer Day on April 22 as part of Law Week celebrations. ... [read more]

Monday, April 17, 2017 @ 11:07 AM

Law on conception via reproductive technology after death raising questions

Ontario has recently made legislative changes to include unborn children of a deceased conceived posthumously in the definition of “child” in several pieces of legislation including the provisions of the Succession Law Reform Act  (SLRA) that deal with applications for dependant’s relief. ... [read more]

Thursday, April 13, 2017 @ 8:12 AM

TRUSTS - Constructive Trusts - Unjust Enrichment

Appeal by Sweet from a decision finding that the respondent was entitled to the proceeds of a policy of insurance on the life of the respondent’s former husband. The respondent and her former husband were married for more than 20 years and the respondent was the named beneficiary of the Policy during their marriage. She was not designated as an irrevocable beneficiary. Following the separation, the husband established a relationship with the appellant. The husband was a man of limited means, living in the post-separation period on a disability pension, and suffering from the disabilities associated with his physical, mental and substance abuse issues. The appellant was also disabled. They lived together in the appellant’s apartment until the husband’s death 13 years later. Shortly after the husband and the appellant began living together, and contrary to an oral agreement he had with the respondent, who continued to pay the premiums, the husband revoked the designation of the respondent as beneficiary and designated the appellant as the irrevocable beneficiary under the Policy. The application judge found the respondent was entitled to recover the policy proceeds on the basis of unjust enrichment. Although equitable assignment was not before the Court on the application, the application judge held that the oral contract between the respondent and her husband took the form of an equitable assignment to the respondent of the husband’s equitable interest in the proceeds of the Policy. ... [read more]

Friday, April 07, 2017 @ 2:37 PM

Alberta law reform agency recommends abolition of outmoded perpetuities rule

The Alberta Law Reform Institute describes the Rule Against Perpetuities (RAP) as an “old and complex” set of rules to keep people from tying up land or assets to the extent at which future generations are unable to sell or mortgage property. Alberta reformed RAP in the Perpetuities Act in 1972, but now the province's law reform agency has published a report recommending the abolition of the perpetuities law altogether. ... [read more]

Friday, April 07, 2017 @ 10:53 AM

Litigation funding for high-stakes commercial suits coming | Julius Melnitzer

In a sure sign of desperate times for general counsel and in-house law departments, litigation funding is coming into its own — although it is just starting make a dent in Canada. The desperate part is that cost constraints are failing. It’s not that GCs haven’t been trying. The legal press has been awash for some years now with self-congratulatory back-slapping so rampant it risks breaking the collarbone of the backslappers themselves.   ... [read more]

Friday, April 07, 2017 @ 8:52 AM

TRUSTS - Trust property - Tracing

Appeal by the plaintiff investor from a decision respecting the distribution of funds to investors in a Ponzi scheme. The investors provided their investments to Base Finance on the understanding that Base Finance was the conduit through which the investments would flow through to the mortgagors. Base Finance did not obtain any mortgages using the investors’ money. In September 2015, the company’s bank account with about $1.085M on deposit was frozen and a receiver appointed over the assets of Base Finance. The chambers judge impressed the frozen funds with a constructive trust. He found that the investors’ monies as they related to the September bank statement could be easily and clearly traced to the bank account. He then directed a pro rata sharing based on tracing or the lowest intermediate balance rule (LIBR) such that a claimant could not claim an amount in excess of the lowest balance in a fund subsequent to their investment but before the next claimant made its investment. The appellant argued the chambers judge erred in law by holding that a pro rata sharing on the basis of tracing to the lowest intermediate balance in the account was the “general rule” unless it was practically impossible, and that the chambers judge failed to consider the intention of the beneficiaries to hold commingled funds as co-owners in the mortgage investment. ... [read more]

Wednesday, April 05, 2017 @ 10:50 AM

Courts reluctant to interfere with written beneficiary designations

The interpretation of insurance contracts is one of the more settled areas of law. While courts consider a number of factors, as denoted in MacDonald v. Chicago Title Insurance Co. of Canada 2015 ONCA 842 and similar cases, the general rule of thumb is that the policy language controls. On occasion, this leads to perverse results, as occurred in the recent case of Moore v. Sweet 2017 ONCA 182.  ... [read more]

Monday, April 03, 2017 @ 8:44 AM

Access to Justice: Let’s give the Bonkalo report a chance | Thomas Cromwell

I wish that we didn’t have a large and growing legal services gap. But we do. Just look at the never-ending waves of self-represented litigants in our courts. Most of them wish they had a lawyer; some started out with one, but ran out of money along the way. And, sadly, the unmet need for legal services for these people is only the tip of the unmet legal needs iceberg. ... [read more]

Friday, March 31, 2017 @ 2:40 PM

Supreme Court to revisit Jordan in spring session Megan Savard

In its spring session, the Supreme Court of Canada is revisiting the thorny question of what the Charter right to a speedy trial requires, and it will also hear from unionized federal Crowns who say their Charter right to liberty and privacy is impinged by being required to be on-call (without pay) outside regular work hours. ... [read more]

Thursday, March 30, 2017 @ 8:00 PM

Law commission report calls for upgrade of guardianship laws

Not applicable ... [read more]