League and Williams Lawyers

Author: Janice Williams

Marine Injury: Obligations to those Renting Boats

Recently a houseboat rental company was sued after a mooring line and beaching stake was launched into the windshield of the houseboat striking and injuring the renter on Shuswap Lake. The case of Oddy v. Waterway Partnership Equities Inc. (2017) highlights the responsibility and duty of care required by marine rental companies to those who rent a boat from them.

How the Injury Happened

The victim, Oddy, and her friends were excited for their 5-day vacation to Shuswap Lake on the houseboat named Annalise. Oddy had experience with boating and was confident in her abilities. Waterway Partnership Equities gave specific instructions to the group on how to properly moor the houseboat each night.

Among other instructions, they were instructed to “moor the vessel at night by driving it bow-first onto the beach and then use mooring lines from either side of the stern of the houseboat secured to ‘beaching stakes’ well up on the beach so that each line was at about a 45 degree angle away from the sides of the vessel. The lines on both sides were intended to be taut.”

Oddy was woken up one morning by heavy wind hitting the side of the boat. Oddy noticed that the boat had begun to drift to the side because one of the two mooring lines had loosened and gone slack. This caused the other mooring line to become extremely tight. Oddy decided it would be best to start the boat and drive it back into the beach, bow-first, as originally instructed. As she began to start the boat, the mooring line and beaching stake broke free, launching toward the boat, shattering the wind shield and striking Oddy. As a result, Oddy suffered significant injuries.

Injury Claims for Boating Accidents – What Must be Proven?

Just because an injury has occurred doesn’t always mean that someone will be held liable.

Oddy started a lawsuit at the BC Supreme Court, suing Waterway Partnership Equities Inc. for negligence. Oddy claimed that the mooring lines they were given were too elastic, ultimately causing the beaching stake to loosen and launch at her. The houseboat rental company owed Oddy the standard of care to provide the ship with a mooring system that was reasonably fit to perform its intended purpose.

In the court, it was determined that the mooring lines used on the Annalise were the commonly used mooring lines for this type of houseboat and they were purchased from a reputable vendor. There was no direct evidence that Waterway Partnership Equities should have known that the mooring lines would be incapable of performing their intended purpose. The judge ruled that there was no duty to consult marine experts on these mooring lines or to notify Oddy and her party of the possibility of the mooring line failing. Because of this, Waterway Partnership Equities was not held liable for this injury. The judge concluded that they did not breach the duty of care owed to the victim.

The ruling also mentioned the fact that, even if the duty of care was breached, the beaching stake suddenly releasing and shooting at the houseboat was unforeseeable. “It would not have occurred to the mind of a reasonable man in the position of the defendant.” The case was later appealed to the BC Court of Appeal in 2019. The appeal was also dismissed, concluding that the original ruling was correct.

Even though this injury may not have been the fault of Oddy or her friends onboard the Annalise, she was not eligible for compensation at the expense of Waterway Partnership Equities. A claimant must be able to prove the defendant acted negligently, the injury was caused by that negligence, and that the accident was reasonably foreseeable by the defendant.

Looking for more information? Read our page on the basics of marine law in BC.

Have a question about marine law or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

February 23, 2021
Children and Inheritance: When’s a Good Age?
For many parents, it’s clear that their children will inherit most or all of their estate. However, the best means of giving their children their inheritance is less clear. Some worry that getting a large sum of money too young might harm a child’s drive to succeed, or allow them to waste opportunities their inheritance might have provided them with. Others believe inheriting at a younger age can provide their children with greater opportunities to establish themselves, their career, and their own family. So, when should children receive their inheritance?

There is no perfect age for inheritance. Every person is different, and how they will use their inheritance can vary widely. The will-writer decides when and how the inheritance is given through specific terms in their will. Parents should consider the size of the inheritance, their child’s financial situation, and personal traits when making this choice. It’s also important to note that minors in BC can’t receive an inheritance until they’re 19 or older. Any inheritance a minor is entitled to will be held by the Public Guardian and Trustee of British Columbia until they’re 19 years old.

How Inheritances Can Be Distributed to Children

Many parents are surprised to learn they don’t have to give their children their entire inheritance all at once. When planning your estate, one of the most important decisions is how and when your children will receive their inheritance. There is no one-size-fits-all approach, so it’s important to consider your options based on your family and children’s unique situation. Some common options considered by parents when making their estate plan include:
- Immediate lump sum distribution:
  - You children receive their entire inheritance upon your passing.
- Age-based distribution:
  - You set specific ages for when your child will receive portions of their inheritance with staggered payments.
- Milestone-based distrubution:
  - You decide on specific milestones that your child must reach to receive specific portions or the lump sum of their inheritance. This can allow you to financially support your child for an important milestone without them having access to a large sum all at once.
A family trust account in BC can have a lifetime up to 80 years.

Deciding What is Right for Your Estate Plan

Deciding how and when your children should receive their inheritance can be a challenging and very personal process. Every family is unique, and an estate plan that works for one family may not work for another. By creating a detailed estate plan with an experienced lawyer, you have access to a number of estate planning tools to make a plan that is right for your family. Some things parents may consider when deciding how to structure their child’s inheritance distribution include:
- The child’s financial responsibility and experience handling money;
- The child’s current financial situation, and situation in the foreseeable future; and
- Your values and goals for your family.
In the end, it’s up to parents to decide when and how their children should receive their inheritance. Financial maturity and the size and nature of the inheritance are both crucial in making this decision. If you’re a parent, unsure how you want to set-up your child’s inheritance or trust, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
February 18, 2021
Inheriting Debt: Estates That Can’t Afford All of the Debt

Sometimes, a person’s estate isn’t large enough to pay all of the debt they owe to creditors from their lifetime. This is called an insolvent estate. When this happens, loved ones and beneficiaries are often worried that they will be burdened with the deceased’s debt. Beneficiaries of an insolvent estate are not likely to receive their inheritance. However, they will not “inherit” the deceased’s debt either. Barring unusual circumstances, the estate is responsible with paying the deceased’s creditors. No one else will be required to pay unless they were expected to before the testator’s death. If an estate can’t afford all of its payments, certain creditors won’t be paid in full.

Debts Owed, But Not Inherited

A misconception that people often have is that debts simply disappear upon one’s death. This is not the case. People, and their estates, are always required to pay off outstanding debts before gifts can begin being distributed to beneficiaries. In a way, the beneficiaries are indirectly ‘paying’ these debts, as their inheritance is being used to pay them. It’s important to understand that beneficiaries are never to pay debts after they’ve received an inheritance. The executor must ensure all estate creditors have been paid before distributing gifts.

When Debt is “Inherited”

You can only ‘inherit’ debt from a loved one when it is jointly owned between yourself and the deceased. For example, if you and your spouse had a joint loan, you must repay it even if your spouse dies before the balance is cleared.

Avoiding Inherited Debt for Your Loved Ones

Well, the obvious solution to preventing loved ones from inheriting debt is to not make any joint debt agreements. While this solution might be painfully obvious, it’s not always an option for some people. We would recommend not entering into joint debt agreements when you’re reaching an older age as you’re at a higher risk of passing away before the debt is repaid. In the case that you have joint debt with someone, when one of the testators passes away, the surviving person is responsible for paying the balance.

Any earnings received from a life insurance policy are tax-free.

Depending on the debt agreement, some life insurance policies will cover your loved ones in the unfortunate case that you pass away before the debt is paid. There are different types of life insurance and can provide further benefits in terms of estate planning. For more information, read our blog on life insurance.

Executors Dealing with Insolvent Estates

The estate executor will be responsible for paying any debts owed on behalf of the estate, using funds from the estate assets. When the estate is insolvent, it can be complex to figure out which creditors have priority to be paid. Just like the beneficiaries of the will, the estate executor is not personally liable to pay debts that the estate can’t afford. The only time an executor is liable is when they distribute inheritances to beneficiaries before paying creditors. For more information, read our blog on the debt repayment order of priority.

In the end, debt is never passed down through the will if the estate is unable to pay for the debts owed. Beneficiaries of a will never have to pay anything to receive their inheritance and won’t have to pay any estate taxes or debts after receiving their inheritance. The only case where debt is “inherited,” is when the debt was originally jointly owed. When one of the joint debt owners passes away, the debt is still required to be paid by the surviving person.

If you’re unsure how your debts will make an impact on your estate, contact an experienced estate lawyer today. We can help you to understand the implications your debts might have on your estate and the inheritances you wish to give to loved ones.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

February 5, 2021
Role of a Beneficiary: What Can and Should a Beneficiary Do?

If you’ve recently been named as a beneficiary of a will for the first time in your life, you’re probably wondering what you have to do to receive your inheritance. In some cases, beneficiaries don’t even know that they are a beneficiary in the deceased’s will until after the will-writer has passed away. Either way, a beneficiary of a will has a minimal role in the estate administration process. In most cases, the beneficiary can sit back and wait patiently for their inheritance to arrive.

The executor(s) of the will are the people responsible for administering the estate. Once they have finished the administration process, they are able to distribute the estate assets to the beneficiaries as described in the will. Beneficiaries don’t have the contribute to the administration process, and they do not have to pay any money to the executor or any one else to receive their inheritance from the estate. There are a number of inheritance scams where fraudulent people or businesses try to trick people into paying a fee to receive an inheritance that doesn’t actually exist. To reiterate, inheritances never have a fee attached to them and any gift received as part of a will is not subject to income tax.

Unfortunately, sometimes the executor of the will fails to fulfill their duties to the detriment of the beneficiaries. When this happens, the role of the beneficiary expands and beneficiaries are able to take action to ensure that they receive their inheritance in a fair and timely manner.

When Beneficiary Action is Required

While beneficiaries have a minimal role to play during estate administration, this doesn’t mean that they are left helpless at the hands of an incompetent executor. When an executor is failing to administer the estate or not properly meeting the responsibilities and duties of an executor, beneficiaries can and should take action. Depending on the executor’s actions or lack thereof, a beneficiary has different legal remedies available to exercise.

Slow Executors

Beneficiaries never have to pay money to receive an inheritance.

Executors typically have a 1-year period from the date of the will-writer’s death to finish the entire estate administration process. This is called the executor’s year. Most motions started by a beneficiary during this time will not be heard by the courts. This is a common law principle so remember that there are exceptions to this rule which can arise.

When an executor fails to administer the estate within the executor’s year, beneficiaries can begin to take action to speed up the process. There are various different types of delays – both reasonable and unreasonable. When the administration is unreasonably delayed, beneficiaries will be able to take legal action. For more information, read our blog on what can be done about slow executors.

In the most extreme scenarios, executors can be removed by the courts. This is a last resort option for courts as it is contrary to the final requests of the will-writer. For more information, read our blog on removing an executor.

Inaccurate Accounts

Once a will’s executor has finished administering the estate, they must send a detailed account of everything that went into and out of the estate. This is to ensure that the executor didn’t forget about any assets or commit any fraudulent behaviour. Beneficiaries should be extremely careful to look through the details of the account, ensuring that there are no mistakes or errors. If a beneficiary notices a discrepancy, they can begin to take action against the executor.

If a beneficiary notices an estate asset has gone missing, they can force the executor to act, proving to the courts everything that has gone into and out of the estate. For more information, read our blog on forcing an executor to act.

In the more extreme cases, a beneficiary is able to sue the executor on behalf of the estate. Since the beneficiary is not actually in possession of or the legal owner of any piece of the estate yet, they must sue on behalf of the estate. For more information, read our blog on beneficiaries suing on behalf of an estate.

If a beneficiary believes a debt belonging to the estate should be paid that was not, they can file for the courts to order the executor to pay the debt. The beneficiary will not be held liable if they are given their share of the estate and a debt is later realized to have not been paid by the executor. For more information, read our blog on the rights of beneficiaries in terms of debt.

If you’re a beneficiary of a will and are unsure about what you should and shouldn’t do in your situation, contact an experienced estate lawyer today. We will ensure that you receive the inheritance that you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

February 3, 2021
Estate Litigation: Drafting Lawyer’s Disclosure
Sometimes, a lawyer’s file containing notes and documents written during the testator’s will-writing process can be helpful in resolving litigation. However, lawyers aren’t always able to release this information. Lawyers have a certain degree of confidentiality they must adhere to. They owe this duty to the testator even after they have passed away. According to chapter 3 of the Code of Professional Conduct for British Columbia (CPC),

“A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.”

Lawyers and Confidentiality Release

There are few circumstances where a lawyer is able or required to release information on a client from their files. Further, the CPC outlines that while a lawyer must keep strict confidence on their client’s affairs, they can release such information when:
1. Expressly or implicitly authorized by the client;
2. Required by law or a court to do so;
3. Required to deliver the information to the Law Society, or
4. Otherwise permitted by the Code.
A lawyer always owes a duty of confidentiality to all of their clients.

Basically, a lawyer can only release all their information on a client if authorized by the client or the courts. People are sometimes confused, wondering why this information is confidential. However, it’s important that client information be confidential in order for a lawyer to give effective advice and clearly communicate with their clients. This ensures that lawyers understand the entire situation to the fullest possible extent and can give the best advice possible.

Client/Executor Authorization

Usually, estate litigation cases arise after the will-writer has passed. In this case, the client obviously can’t authorize the release of the information in the lawyer’s file. The executor of the will is able to authorize the release of information. Executors are appointed to administer the estate, and must act in the best interests of the beneficiaries. In order for the executor to waive confidentiality, they must sign off, agreeing for the lawyer’s file to be released. The executor has the option to allow this or not.

When the will-writer is still alive, they can allow the will drafting lawyer to release information if they choose. The executor will not be given this ability until after the testator has deceased.

Court Authorization

In some cases, the courts have to order the authorization for the lawyer to release the will drafting information. An example of when this could arise in an estate litigation case is when there is question of the validity of a will. Since the validity is in question, the executor of the will might not even be a valid executor and hence cannot authorize the release. Other cases where this can arise include when the courts believe that the release of the file is essential to a case, however, the executor is refusing to authorize the release. The courts are given the final say and can exercise this power when it appears to be necessary to resolve a case.

If you believe that the release of a drafting lawyer’s file could help with your estate litigation case, contact an experienced estate lawyer today. We can ensure that you’re properly represented and get the information you’re entitled to.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
February 2, 2021
Probate, or Proof in Solemn Form?
Probating a will and proving a will in solemn form are two different legal concepts which can be easily confused. Probating a will, known as proving a will in common form, proves your will is real and properly prepared. Conversely, proving a will in solemn form affirms the validity of a will for the courts.

Why Probate Your Will?

In BC, you must probate a will if the estate value is higher than $25,000. This excludes assets held in joint tenancy or with designated beneficiaries. The executor uses the grant of probate to prove to banks that they have authority over the estate. This helps to guarantee that valuable assets are not improperly handled after the owner passes away.

The Process of Probating a Will

To obtain a grant of probate, the executor applies to the court. They must file a requisition and evidence in support of the application including:
- A certificate of wills notice search,
- An affidavit of the executor attaching the original will and codicils to the will along with any memoranda that are referred to in the will,
- A detailed statement of the deceased’s assets and liabilities,
- The plan for distribution contained in the will,
- An affidavit advising the court of the persons who inherit under the will, those would have inherited had there not been a will and those entitled to claim against the will under the Wills, Estates and Succession Act, and;
- An affidavit confirming that those who inherit, would have inherited had there not been a will and those entitled to claim against the will have been served with the notice of probate application.
In some circumstances, other affidavits may also be needed – and it may also be necessary to inform the British Columbia Public Guardian and Trustee of the application for probate. In addition to probate, a person may also need to apply for letters of administration from the court. A full list of the probate forms is available at the Province of British Columbia’s website.

You should expect to pay approximately 1.4% of the total estate’s value, plus a $200 court filing fee for probate. If you need a grant of probate even though your assets are valued below $25,000, the fees will be waived.

Why Prove a Will in Solemn Form?

It’s not common that a will needs to be proven in solemn form.

A proof in solemn form is conducted when the courts need conclusive evidence as to whether a will is valid, and is the final will of the testator. This is usually only necessary when there is controversy over the validity of a will. In this case, the court can give the executor the burden of proving the will in solemn form. This will ultimately end the dispute and settle if the will is the valid, last will of the testator. The most common instances where proof in solemn form is required are when:
1. A beneficiary is taking action on the validity of a will. The executor must prove in solemn form that the will is valid; or,
2. Someone takes action to revoke a grant of probate after a proof in common form. The executor must prove in solemn form that the grant of probate and will are valid.
The Process of Proving a Will in Solemn Form

Proof in solemn form is an extensive process. All interested parties are notified of the process. A case in Vancouver from 2009 demonstrates when and why the courts would require a proof in solemn form.

The case of Romans Estate v. Tassone (2009) demonstrates an instance where an executor is ordered to prove a will in solemn form. Romans gave his house to Tassone, but later signed in his will that a third party, Cardinal, be given the estate home. After Romans passed away, Cardinal sued Tassone, claiming that Romans did not have the capacity to give the house to him and that he used undue influence to receive the house. The judge said that Cardinal must prove the will in solemn form in order to have grounds to sue Tassone; if the will was not conclusively valid, there was no reason to begin the trial. If this will was successfully proven in solemn form, then Cardinal would be awarded the estate because this would mean the will was a valid, final will.

In Romans’ estate trial, the will’s validity was in question, a beneficiary took action, and as a result, a proof in solemn form was required.

If you need legal advice on how to probate a will or how to prepare a proof in solemn form, contact an experienced estate lawyer who will ensure that estates are distributed as intended by the will-writer.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
January 28, 2021
Moving to a Different Province: Do You Need to Write a New Will?.

Relocating to a new country means adapting to its estate laws. Your old will may not be valid there. It might need significant updates, or even a complete rewrite to ensure its validity in your new home. But, what about when you move to a different province in Canada? Even though all provinces are subject to federal Canadian law, estate laws can vary greatly between provinces. If you are moving provinces or have since you last updated your will, it may be time for a new one.

Every province and territory in Canada has their own separate estate laws. If you prepare your will in Ontario, but later move to British Columbia, the will from Ontario is to be used in BC when you die (assuming a new one isn’t written). Even if your will was valid in Ontario, if your dispositions don’t comply with the Wills, Estates, and Succession Act (WESA), you risk having your will varied or even found invalid after your death. Often when this happens, the will-writer has no idea that their will is invalid in their new province.

What to Do When Moving Provinces

A marriage revokes any pre-existing wills in Ontario, but not in BC.

If you’re moving to a different province, you should have your will reviewed by an experienced estate lawyer. An estate lawyer can go through your will, identifying provisions that might have been valid in your old province of residence, but would be invalid in the new one. Keep in mind that it’s extremely unlikely that you will have to write an entirely new will. Usually, only a few changes will be required, if any. However, it is still essential to ensure that your existing will is valid in your new province of residence. Otherwise, your estate may not be distributed according to your wishes if estate litigation arises.

Another issue to consider after moving to a new province is who the executor of your will is. If your executor does not live near your residence, it can create difficulties for them during the process of administering your estate. If you moved to BC from Québec, it will be extremely difficult for an executor in Québec to administer your estate across the country in BC. This also means that it may take longer for the beneficiaries of your estate to receive their inheritance. Estate administration encompasses a handful of different tasks, some of which require the executor to be physically present. In general, it’s usually recommended that an estate’s executor is someone who lives in the same place as the will-writer. Because of this, you should always consider whether or not your executor should be changed when you move to a new province.

Moving, but Not Permanently

An important concept to understand in estate law is that of a domicile – the place where your permanent residence is. Your domicile determines which country’s or province’s estate laws will be applied to your will. Throughout this blog, when we mentioned “moving to another province” we were referring to someone who is moving, with the intention of making the new province their permanent residence. This means that the old province’s estate laws will be irrelevant to the administration of the individual’s estate. When you pass away, your domicile is where your will is to be executed.

For example, if someone moves to BC, with the intention of staying there for only 3 years before moving back to Alberta, they wouldn’t need to update their will. This individual’s domicile will always be Alberta, even if they are living outside of Alberta temporarily. Regardless of where they die, their will is to be executed in Alberta. For more information, read our blog post on domicile.

If you’re planning to move to another province, contact an experienced estate lawyer to review your pre-existing will. In some cases, nothing will need to be changed; however, you should always have a lawyer in your new province of residence review the documents to be sure that your estate will be distributed exactly as you’re intending. If your will is invalid and you die intestate, the courts will determine how your estate is to be distributed.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

January 22, 2021
The Careless Estate: Beneficiaries Suing on Behalf of the Estate
Executors have several responsibilities when administering an estate. This includes accounting for all assets, debts, and money exchanges coming into and out of the estate. When the executor is ready to distribute to beneficiaries, they are typically required to provide a copy of these accounts. Depending on the value and complexity of the estate, this can be an extremely detailed, complex document. In the case of a careless executor, beneficiaries might raise questions over where certain assets and accounts went during administration.

Sometimes, an inheritance can change a beneficiary’s life, and it can be stressful waiting when the executor is not managing assets as expected. Unfortunately, some executors have attempted theft by not accounting for assets in their report to the beneficiaries. It’s important that beneficiaries proceed with caution in agreeing to the accounting details.

If a beneficiary believes the final accounts are not proper, there are two options available to them:
1. Forcing the executor to act; or,
2. Suing on behalf of the estate.
This blog will talk how about how beneficiaries can sue on behalf of the estate.

Suing on Behalf of the Estate

While beneficiaries might feel helpless during estate administration, they do have rights to ensure the executor is managing administration properly. Most importantly, beneficiaries are entitled to the accounting information during the estate administration process. An executor is required to give this information when requested by a beneficiary. Beneficiaries can keep a close eye on the estate through the accounting information if they’re suspicious of the executor’s actions.

When an asset has gone missing, it’s usually up to the beneficiaries to report it.

If a beneficiary believes an estate asset has been intentionally misrepresented, they can sue on behalf of the estate.

Suing Under WESA

According to the Wills, Estates and Succession Act, beneficiaries are allowed to sue on behalf of an estate in BC:
- To recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
- To obtain damages for breach of a right, duty or obligation owed to the deceased person.
Usually, suing an executor on behalf the estate will result in the executor being ordered to detail where the missing asset is. It may result in their removal as the executor and if they are entitled to an inheritance, can result in their removal as a beneficiary all together. In extreme cases where the executor was behaving inappropriately, they can be ordered to compensate the beneficiaries by paying from their own assets.

While it may seem like the only option, most matters like this can be resolved without help from the courts. Having an outside party, like a lawyer, speak with the executor can solve most estate problems in a much faster and easier fashion.

Beneficiaries may feel as if they do not have a lot of control over the estate administration process; however, there are options available to ensure the process is done correctly. If you’re a beneficiary that thinks an asset has been misrepresented, contact an experienced estate lawyer today to begin solving this problem sooner rather than later.

Have a question about this topic or a different legal topic? Contact us for a consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
January 20, 2021
Snowboarding Injury & Liability Waivers: When Are They Legally Binding?
In a tragic incident at Grouse Mountain in 2016, an Australian snowboarder (Apps) seriously injured his spine after an accident on the mountain, resulting in him becoming a quadriplegic. The snowboarder, sued Grouse Mountain Resorts (Grouse) for negligence and breach of the Occupiers’ Liability Act, claiming that he was not made aware of the company’s waiver – specifically the risks involved with the jump on which he was injured. In the case Apps v. Grouse Mountain Resorts Ltd. (2019) the liability of Grouse for the snowboarder’s injuries was determined.

A waiver is an extremely important document for the operation of many businesses, big and small. Most people aren’t aware that a poorly drafted or displayed waiver is not always legally binding. However, many waivers are legally binding, and individuals should always be aware of what they are signing, and the risks of the activity they are about to undertake.

Liability Waivers Without Signatures

“The court has clarified that businesses who rely on waivers need to adequately advise consumers … of the risks before they pay for their ticket” -Darren Williams

Grouse did not require their customers to sign a waiver. Grouse’s liability waiver was displayed on a large sign (above the ticketing booth), on the back of the chair lift tickets and on a sign at the park’s entrance. There were also warning signs displayed at various spots throughout the park. This formed an implicit waiver with the customers. The act of using the mountain and its amenities implied that the customer accepted the waiver’s terms and conditions. Apps argues that Grouse failed to warn him of the risks and dangers of their slopes and jumps which, he claims, had no safety precautions implemented. He argued that the waiver signs were not clear enough and one would not reasonably read the terms and conditions until after they had purchased the non-refundable park ticket.

In this case, it is clear to both parties that the waiver’s terms are legitimate – they apply to the facts of how the accident occurred, the waiver is not unconscionable and the waiver is not against public policy. The subject matter before the court was whether Apps was bound to this waiver, seeing as he did not physically sign it, or acknowledge reading it.

What must waiver writers do to give “reasonable notice”?

The specific issues of the case were:
1. whether Grouse, in the circumstances, took sufficient steps to give reasonable notice to the plaintiff of the risks and hazards of using the XL jump; and
2. whether Grouse, in the circumstances, took sufficient steps to give reasonable notice to the plaintiff of the waiver of the mountain’s own negligence.
At the time of the accident, Apps was an employee at the Whistler Mountain Resort, where they had their customers sign a waiver before skiing or snowboarding on their hills. The judge deemed that Apps should have been aware of the hazards and risks at Grouse because he was involved with giving similar waivers to customers at work. He also had a season’s pass at Whistler Blackcomb, where he signed a waiver, acknowledging the risks and dangers of snowboarding at the Whistler mountain.

While he may have not been directly aware of the risks at Grouse, the BC Supreme Court judge dismissed his lawsuit. Grouse was ruled to have done “all that was reasonable” to bring the terms of the waiver to Apps’ attention before he began snowboarding that day.

Liability waivers must be noticed and agreed to before ticket purchasing

Apps later appealed this judgement, on the grounds that he didn’t notice the terms of the waiver until after he purchased his non-refundable ticket and that the waiver at Whistler was not relevant to his case involving Grouse. If Apps was not made aware of the terms and conditions of the waiver before purchasing the ticket, this would not be reasonable notice on behalf of Grouse.

On the first issue, the appeal judge ruled that Grouse did not take sufficient steps in giving Apps reasonable notice of the risks of the mountain and the jump. While it was determined that the park entrance sign was “clear and easy to read,” it was not relevant to the case because this was displayed to Apps after he had purchased his ticket. The only waiver notice before the ticket was purchased was the sign above the ticketing booth which was said to have been “difficult to read.” The appeal judge ruled that it would be unreasonable to assume anyone would stop to read this sign.

On the second issue, Apps’ waiver signing at Whistler Mountain was ruled insufficient in giving him the knowledge of Grouse’s negligence exclusion. Apps admitted that he did not read the waiver in which he signed for his season’s pass at Whistler. The appeal judge ruled that while he is bound to the terms of that waiver, it does not make sense to imply that this waiver makes him knowledgeable in the waiver he also did not read at Grouse. Apps “had neither actual knowledge of the term, because he did not read it, nor an express understanding that its inclusion was standard.”

On Mar. 4, 2020, Apps’ appeal was granted by the BC Court of Appeal. This case brings additional clarification as to when an implied waiver is legally binding. Displaying a “difficult to read” sign that outlines risk and hazards is not enough to exempt a company from being held liable for injuries.

For more information, read our blog post on signing a waiver in BC.

Have a question about liability waivers or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
January 12, 2021
Adoption and Inheritance: What You Need To Know

While BC has relatively generous estate laws for children who have been unfairly disinherited, estate planning or litigation can become complicated for families who have either adopted children or given children up for adoption. When there are no valid reasons to disinherit, by law, parents and spouses must provide adequate provisions for the life and maintenance of the lives of their children and spouse in their wills. In blended families and families with adopted children, questions and complications can arise over the definition of who a “child” really is.

Rights of Adopted Children & Adopting Parents

In BC, a legally adopted child is treated the same as a biological child would be for estate purposes. A will provision making a gift to “my children” would, by default, include any adopted children. In some cases, children are taken care of by friends or family members of their parents, while never being lawfully adopted. There is no concept of common law adoption like there is for common law spouses; no matter how long someone is caring for a child, they are never their lawful parent unless a legal adoption takes place. A child is not entitled to a caretaker’s estate even if the caretaker was with them for the entirety of their childhood.

When an adopted child is disinherited from an adoptive parent’s will, they have the same right as a natural child to claim to vary the will. If there was an invalid reason for disinheriting the child, the will can be modified to give the adopted child their fair entitlement to the estate. This procedure will be exactly the same as for a natural born child who was never adopted, who challenges a biological parent’s unfair will.

Rights of Adopted Children & Biological Parents

Parents who have given a child up for adoption can still leave them an inheritance if they specify so in their will.

As described in section 3 of the Wills, Estates and Succession Act (WESA), when a child is adopted they are no longer entitled to the estate of their biological parent, unless otherwise specified in the will. Once a child has been adopted by another family, that child is no longer considered their biological parent’s child for estate purposes. A will provision making a gift to “my children” would not naturally include any children who have been legally adopted by someone else.

In the case of Boer v. Mikaloff (2017), a child who was given up for adoption was re-united with his birth mother late in her life. Before her death, she named her biological son as a beneficiary in her will, giving him part of her estate. The son was looking to make a will variation claim, arguing that he should be considered to have standing in the claim even though he was no longer legally her child because he had been made a beneficiary. The question the courts looked to answer was, “does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act?” In conclusion, the courts ruled that the child was a child of the adopted parent now and being named as a beneficiary of his biological mother’s will did not change this. The judge ruled that for estate purposes, no, an adopted child is not a lawful child of the biological parent. The will was not varied and the son was given the specified amount in his biological mother’s will, nothing more.

This case is consistent with the facts of the Wills Estates and Succession Act; however, it can be troubling for adopted children who develop loving relationships with their biological parents. For more information on this case, read our blog and watch our video blog on adopted children and their biological parent’s estate.

If you’re an adopted child or parent of an adopted child who is unsure of how these laws impact your situation, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

January 11, 2021