Estate Litigation – Loss of a Family Member Conflicts

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When dealing with the loss of a family member, there can often be conflict or tension with other people who were also involved with the deceased. In such cases, estate litigation issues may arise because certain people may feel that they have not received a fair portion of the estate or they claim that other people took advantage or put pressure on their loved one. Estate litigation claims affect or involve all beneficiaries, trustees or executors.

When Does an Estate Litigation Claim Arise?

An estate litigation claim may arise to deal with a number of issues, including:

  • claims suggesting that the deceased/will-maker lacked mental incapacity when making a gift in a will;
  • elder abuse arising from undue pressure or influence that have resulted in unfair or inequitable bequests;
  • disinheritances of children or spouses that may or may not be upheld by a Court;
  • insufficient or unfair bequests to children and spouses; and
  • contested trusts.

Resolving the Issue

Estate litigation often increases conflict and tension between family members. For this reason, although it may not always be possible, it is important to resolve these issue as quickly as possible. Instead of litigating these claims in Court many families choose to resolve an estate litigation issue through alternative dispute resolution, such as mediation.

 

If you need legal advice regarding estate litigation click here to contact us or to schedule an appointment.

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My Spouse and I are Separating, When Can We Get a Divorce?

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When Can I Apply for a Divorce?

Many people believe that a divorce can happen overnight. However, getting a divorce can be complicated and does take some time. In Canada, a couple can only get a divorce if there has been a breakdown of the marriage. There are three ways to show that a marriage has broken down: you and your spouse have lived separate and apart for at least one year before you apply for a divorce; adultery; or physical or mental cruelty.

The most common type of divorce is one that results from living separate and apart for one year. It can sometimes be difficult, more time consuming and expensive to prove that your spouse committed adultery or was physically or mentally cruel. If the court finds that you forgave your spouse’s behaviour, you will also be unable to receive a divorce based on adultery or cruelty.

Separation

Sometimes when a couple decides to separate, they may not be able to move into separate houses right away. In some cases, separation can occur while you are still living with your spouse. However, you must not be living as a married couple and you must have the intention to separate. There are a number of factors that may determine whether you are living as a married couple including whether you are sleeping in the same bed, eating meals together, sharing finances, or engaging in activities as a family.

What Else Do I Need to Do to Get a Divorce?

Before you can get a divorce, you must show that you have made reasonable arrangements for the support of your children. “Reasonable arrangements” includes reaching an arrangement for the payment of child support. At the time you apply for a divorce, you may also wish to address how you and your spouse will divide parenting responsibilities, whether spousal support is claimed, and how you and your spouse will divide your property.

 

If you need legal advice on this subject or any other law related inquiry please contact us.

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Injured by a Slip and Fall? Personal Injury

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Injured by a Slip and Fall?

 People often suffer injuries when they slip and fall on another person’s property.

Slip and falls can result from many different scenarios: weather conditions could make a walking surface wet or slippery; an unsafe walking area could be poorly lit; a floor or sidewalk may be uneven due to wear and tear that has not been repaired; an area carpet or mat at a store entrance could be rippled and pose a tripping hazard to those entering the store; merchandise in a store may have fallen and caused a slipping hazard on the aisle.

The Occupier’s Duty

An occupier includes the owner or any person or company that is responsible for a property. Occupiers must keep premises in a reasonably safe condition for those entering upon or using the property. This duty does not require the occupier to keep the property in perfect condition.  The law requires that the occupier act reasonably to ensure the safety of visitors on the property.

If an occupier is negligent in keeping the property in a reasonably safe condition and, as a result, a person is injured then the occupier can be sued for damages.

Seek Legal Advice

If you suffered injuries from a slip and fall, you should consult with a lawyer to understand your legal rights including the time limits to bring a claim and the compensation that could be claimed.  Depending on the specific nature of your injuries, your claim for damages would include your out-of-pocket expenses for medical treatments or rehabilitation, compensation for your pain or suffering, any loss of income and the cost of any future medical care or therapy.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Engagement Ends. Who Gets the Ring? Family Law

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You have been in a healthy relationship for the past 2 years.  It is finally the time to ask the big question.  You present your significant other with a beautiful engagement ring which they, in turn, accept.  The wedding is scheduled for next year.  However, before the wedding ceremony takes place the relationship sours.   You and your significant other blame each other for the relationship ending.  You have asked your ex-partner for the return of the engagement ring.  Your ex-partner refuses its return claiming it to be a gift.

Who has a better claim to the engagement ring now that the relationship has ended?

In a recent British Columbia case [S. (P.) v. R. (H.), 2016 BCSC 2071], the court held that in accordance with the law in British Columbia if a gift is determined to be made in contemplation of marriage and the marriage does not take place, then the gift must be returned.

An exception to that rule comes in the form of an absolute gift.  If it can be established through the evidence of the case that the engagement ring was intended to be an absolute gift, than the ring will not be returned to the one who bought it.

Now, what if the relationship ends due to the conduct of only one of the parties?   This case tells us that fault does not factor in the decision one way or the other in British Columbia.  At paragraph 71 of that Court decision, the court stated “Fault for the termination of the engagement does not enter into the analysis.”  The test is whether the ring was an absolute gift or a gift in contemplation of marriage.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Personal Injury – Bar for the Course, Golfing Risks

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Your friends talk you into taking golf lessons.  They even manage to convince you to go out for a real round of golf.  You find yourself in a group of four, with one friend and two others that you do not know.  Everyone besides you claims to be an experienced golfer.

The round begins and everything is going fairly well (besides your constant miss-hits on the ball).  One of these miss-hits results in your ball barely making it off the tee-box.  You quickly move up to your ball and take one practice swing.  After your practice swing you see that one of the men in your four-some that you do not know is slightly ahead of you.  You do think to yourself that this may not be the safest place for him to stand but you don’t say anything.  The other man does have his eyes on you but he does not say anything either.  You take your triumphant swing and look down the fairway to see where the ball ended up.  To your surprise you do not see anything but rather you hear something.  You hear the yelp of a man who has just been struck in the face with a golf ball.

He is now suing you claiming that you were negligent.

The standard of care expected of a sportsman is what would a reasonable player in his place do or not do.  This test was cited in the British Columbia case Herok v. Wegrzanowski (1985 CarswellBC 2487).

Another BC Court decision stated as follows:

“Although there are some risks incidental in the game of golf, players must take care not to hit anyone because of the obvious danger of injury.”

[Finnie v. Ropponen, [1987] B.C.J. No. 448]

There are many considerations that must go into this “reasonable player” analysis, all of which cannot be discussed in this blog.  However, one pertinent consideration given the above facts is the experience of the players.  As an experienced player, one is expected to know how to play the game safely.  This does not mean that an inexperienced player is free from liability.  The inexperienced player knowing that his or her shots are likely to be sporadic must take caution when swinging a club.

In order to reduce your exposure to liability, you should not swing your club until the rest of your group is alongside or behind an imaginary line that extends straight at 180 degrees from where you have lined up to take your shot.

Given the facts above, it is likely that the inexperienced golfer will be held liable in negligence and responsible for the injured person’s personal injury damages.  The man who was hit will likely be found to have been contributorily negligent as well.  This is because, as an experienced golfer, he should have known not to have been standing ahead of an inexperienced golfer who was about to swing.

If you suffer injuries on the golf course due to the actions of another be sure to contact us for legal advice.

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Boaters and Duty to Rescue – Personal Injuries, Legal Liability

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With summer in full swing, many people find themselves enjoying time on the water in boats.  Although most boating endeavours are fun filled family or friend adventures, situations can arise in which legal liability for personal injuries can ensue.  For example, what is the liability of the boat captain when one of their invited guests accidentally falls in to the water and is injured or dies?  The Courts have held that a boat captain owes a duty to take reasonable care to rescue a passenger who falls overboard [Horsley v. MacLaren [1972] S.C.R. 441].

The boat captain is expected to perform a rescue attempt that would be reasonable under the circumstance.  Boat captains are expected to be aware of the recommended rescue procedure for a passenger that has fallen overboard but are not expected to execute the rescue to a standard of perfection.

The standard of reasonable care exercised by the boat captain must, as stated in Horsley, be measured in light of the immediate and pressing circumstance.  As long as the boat captain acted reasonably in the circumstance the boat captain will be relieved of liability for the passenger’s injuries or death.

With that established, can legal liability arise if one of the other passengers invited onto the boat is injured or killed while attempting a rescue of a passenger who has accidently fallen overboard?  If it can be established that the boat captain has by his or her fault created a situation of peril, they must answer to any person who attempts to rescue the passenger who has accidently fallen overboard.  If the rescuer is injured or killed as a result of this attempted rescue, they can recover damages from the person that created the situation of peril.

It is important in this circumstance to delineate between the situations of peril that the boat captain has created versus the general situation of peril that comes with a person accidently falling overboard.  The boat captain would only be held accountable to the rescuer for injuries or death if it could be established that the boat captain failed to undertake a rescue attempt or did so in a negligent manner.  In other words, the liability of the boat captain to the rescuer stems from the creation of a new situation of peril created through the boat captain’s negligent rescue attempt of the passenger who has accidently fallen overboard.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Squatters Rights in British Columbia – Estate Litigation

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Squatters Rights in British Columbia

You find out that you are the Executor of the Estate of your Uncle John who lived in British Columbia.  Uncle John owned a vacant parcel of land in the interior.  Unfortunately, when you get to the property to inspect it, you discover that squatters are living on the property. The squatters say that they have been on the property since 1995. You want to know the Estate’s rights to the land and whether the squatters have any rights.

The law relating to squatter’s rights is titled “adverse possession”.  Squatter’s rights allows an individual to gain possession of land that is not actually owned by that individual.

In some provinces, squatters can acquire rights if they can show that they continuously used the land for a prescribed period (as may be set out in provincial legislation), that the squatters used the land in a way that is contrary to the true land owners intended use of the land, and that the true land owner was dispossessed of the land.

The good news for the Estate is that in British Columbia it is no longer possible to acquire land through adverse possession by virtue of section 28 of the British Columbia Limitations Act (unless the right to that land by adverse possession existed before July 1, 1975).

In other words unless the squatters could establish that they were in adverse possession before July 1, 1975, they have no rights to the Estate property.

Here, the squatters were in possession only since 1995 so they have no rights to the property.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Child Support – Family Law, Separation, Divorce

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My Partner and I are Separating, Do I Need to Pay Child Support?

Introduction

A parent has an obligation to help financially support his or her children. When two people who have had a child together separate, there is a responsibility to pay child support regardless of whether the parents were married. A step-parent may also be responsible for paying child support. Although a parent will generally be responsible for paying child support, there are a number of factors that may affect how much you have to pay and for how long you have to pay.

How Much Child Support will I have to Pay?

There are guidelines that generally determine how much child support you will have to pay. These guidelines are called the Federal Child Support Guidelines. The amount you will have to pay depends on how much money you make and how many children you have. In addition to the basic amount that the Guidelines set out, you may also be responsible for a portion of other special expenses, such as daycare or the cost of braces.

It is possible that you will have to pay an amount that is different than the amount set out in the Guidelines. For example, a court may order you to pay an amount that it decides is fair in the circumstances. It is also possible to agree with the other parent to pay a certain amount of child support. This amount must be reasonable as a court will change the amount if it determines that reasonable arrangements have not been made for the support of the child.

Step-parents

Although your financial obligation may be different than the amount set out in the Guidelines, if you are a step-parent, you may also have a responsibility to pay child support. If you are a step parent, whether you have to pay child support may depend on the legislation. If you were married, you may proceed under the Divorce Act. Under the Divorce Act, you will likely be responsible to pay child support if you lived with the child and behaved like a parent towards the child.

Under the Family Law Act, you will be responsible for paying child support if you are a legal spouse of the child’s parent and you helped support the child for at least one year. You will be a spouse of the child’s parent if you were married or if you lived in a marriage-like relationship with the child’s parent for a continuous period of two years or if you had a child together. Under the Family Law Act, you will also only be responsible for child support if a court proceeding is started within one year of the last time you providing support for the child. Under the Family Law Act, a step-parent’s responsibility to pay child support is secondary to other parents or guardians and may depend on several factors, including how long the step-parent lived with the child.

How Long Do I have to Pay Child Support?

In most cases, a parent will be responsible to pay child support at least until the child reaches the age of 19. A parent’s obligation to pay child support may continue after the child reaches 19 if that child still relies on his or her parents due to illness or disability, or because he or she is going to school full-time.

If you need legal advice on this subject or any other law related inquiry please contact us.

 

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Challenging a Will? Estate Litigation

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If you are a beneficiary or an executor under a Will, you may have to deal with a Will that is being challenged or, if you are a beneficiary or a potential beneficiary, you may be in a position to challenge a Will. A beneficiary or a potential beneficiary may challenge a Will where he or she claims that the Will is invalid. There are a number of factors that must be met in order for a Will to be valid, the absence of which will leave a Will vulnerable to a challenge.

Legal Requirements

A Will may be invalid if the will-maker did not satisfy the formal legal requirements. For example, in order for a Will to be valid, generally, two people must witness the will-maker’s signature. However, in certain cases, even if a Will does not meet the formal requirements, a court may determine that the Will is still valid.

Mental Capacity

A person may also challenge a Will on the grounds that it is invalid if, when the will-maker made the Will, he or she did not have the required mental capacity to make a Will. In order to have the required mental capacity, the will-maker must understand what he or she is doing and must not be suffering from any disorder or illness that affects mental capacity. For example, a person will not have the required mental capacity to make a Will if he or she is suffering from dementia when he or she makes the Will.

Knowledge and Approval of the Will’s Contents

Although a person may have the mental capacity to make a Will, the Will may still fail to reflect the will-maker’s wishes. A will-maker must understand what the Will is intending to do such that it reflects his or her true intentions. Additionally, a Will may not meet the requirement that the will-maker knows and approves of the contents of a Will if someone else improperly influenced the will-maker. For example, a person who threatens to stop taking care of a person unless the will-maker leaves him or her something in the Will has improperly influenced the will-maker.

What Happens if the Will is Successfully Challenged?

If a court finds a Will to be invalid, the court may look to a previous Will to determine how the deceased’s estate will be distributed. If there is no previous Will that is valid, the estate will be distributed according to the law of intestacy. Intestacy means that the deceased’s family members will inherit from the deceased based on the order set out in the British Columbia Wills, Estates and Succession Act.

If you need legal advice on this subject or any other law related inquiry please contact us.

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