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Tag: Darren Williams

  • Testamentary Capacity: The Basics

    Testamentary Capacity: The Basics

    Testamentary capacity describes the mental ability required to create a valid will. When individuals draft their wills, they must be of sound mind and capable of understanding the implications of their decisions. This is crucial in estate planning. It ensures that wills accurately reflect the testator’s wishes and mitigate risk of estate litigation.

    Assessing capacity can be complex. The courts can be willing to find testamentary capacity in some cases where a person isn’t able to, for example, make financial decisions for themselves. Because wills drafted by a person lacking capacity are invalid, will writers and their beneficiaries should recognize the signs of lack of capacity.

    What is Testamentary Capacity?

    Testamentary capacity is the legal standard for having the mental ability to make or change a will. When someone drafts their will, they must meet specific criteria to ensure its validity. To have testamentary capacity, a will writer must have an understanding of the following.

    Nature of a Will

    •  The testator (the person making the will) must understand the purpose and effect of creating a will.
    • They should comprehend that a will outlines how their assets and property will be distributed after their passing.

    Extent of Their Property

    • The testator needs to be aware of the nature and extent of their property.
    • They must understand the extent of the assets which beneficiaries stand to inherit from the estate.
    • This includes knowing what assets they own, such as real estate, bank accounts, investments, and personal belongings.

     Beneficiaries and Relationships

    • The testator must recognize the people who stand to inherit from the will.
    • Understanding family relationships and friendships relevant to the will is crucial.
    • They must understand the nature of disputes which may arise, particularly from those left out of the will.

    Coherent Planning

    Testamentary capacity requires a will writer to understand these issues, and use that understanding to create a coherent estate plan. When the courts have reason to believe that a person didn’t have testamentary capacity, they can invalidate a will or reverse gift transfers.

    The Importance of Testamentary Capacity for Will Writers

    The general aim of the Wills, Estates and Succession Act and the BC courts that enforce it is to give effect to genuine, valid wills that reflect the will writer’s testamentary intentions. For this reason, the courts are empowered to cure deficiencies in invalid wills to ensure its writer’s wishes are respected. However, the courts can also invalidate a will that was written by someone lacking testamentary capacity for the same reasons. If you write a will without having the testamentary capacity to do so, it may not reflect your genuine testamentary intentions and may not be upheld.

    Ensuring Your Will is Valid and Enforceable

    To be valid in British Columbia, a will must be in writing, signed by the testator and by two witnesses. However, wills which meet these formal requirements can still be considered invalid if they were written by testators lacking testamentary capacity. 

    To ensure that the administration of your estate aligns with your wishes, it’s important to keep your will updated while you maintain testamentary capacity. Further, a robust estate plan should include plans for who will manage your legal, financial, healthcare and lifestyle decisions in the case that you lose capacity unexpectedly. Remember, you can lose testamentary capacity unexpectedly at any time due to serious injury or illness. 

    Mitigating Risk of Estate Litigation

    It is not uncommon for estate litigation to arise when a beneficiary or interested party has suspicions that the will writer lacked testamentary capacity when they executed their will. A common example of this type of wills variation challenge happens when a will writer, lacking testamentary capacity, creates changes to their will without professional assistance. This can often take the form of a handwritten codicil or notes left in their estate home prior to their death instructing changes to their existing estate plan.

    When beneficiaries or interested parties (including past beneficiaries, spouses or children) have suspicions regarding the will writer’s capacity to make those changes, they can make a wills variation claim. Though the outcome of the claim may be that the most recent will from before the writer lost capacity is enforced, the process is still costly to the estate. Will writers should endeavor to prevent possible litigation arising as it can lower the overall value of their beneficiaries’ inheritances and significantly delay the administration of their estate. 

    It’s important to understand that loss of testamentary capacity is not always permanent. Older will writers may experience periods of testamentary incapacity due to health issues or medications they take, but can regain capacity later. Will writers should execute all updates and changes to their will with an estate lawyer, who can ensure that you have testamentary capacity and that your changes will be upheld.

    The Importance of Understanding Testamentary Capacity for Beneficiaries

    Beneficiaries should also understand the significance of testamentary capacity and recognize signs of incapacity for several reasons:

    Protecting Their Interest in the Estate

    Beneficiaries have a vested interest in the validity of a will that they stand to inherit from. Beneficiaries who recognize signs of incapacity can raise their concerns before the death of the will writer, potentially preventing future estate litigation. Further, if a will writer who lacks capacity makes inter vivos gifts of estate assets during their lifetime, beneficiaries can provide valuable evidence should a dispute arise concerning the transfers.

    Challenging Invalid Wills

    Beneficiaries and interested parties need to know when they can raise concerns over a will’s validity. If they have grounds to suspect the will writer lacked capacity when executing their will, they can seek legal help to raise a wills variation claim. Recognising the signs of testamentary incapacity early can help beneficiaries to protect their inheritance.

    An Example From Case Law

    Testamentary capacity is important to understand because the mere presence of cognitive deterioration or illness when a will was written doesn’t necessarily mean the will is invalid. The BC Supreme Court recently discussed this distinction in Nykoryak v. Anderson (2017).

    The case concerned the estate of Ivan Hlynsky. His son and grandaughter, Bill and Mariya, applied for an order from the courts declaring that the most recent version of Ivan’s will was invalid due to lack of capacity. Ivan drafted a will in 2006 leaving the residue of his estate to his son Stephan, and Mariya. Ivan did not include his other children, Bill and Natalie, as beneficiaries of the estate. Before his death in 2015,  Ivan created a new will excluding Mariya. He left the residue to his children Natlie and Stephan.  

    Bill and Mariya challenged the will on the grounds of testamentary incapacity because at the time, Ivan was experiencing cognitive decline including some memory loss and confusion. He was also having significant difficulty with his hearing.

    The Court’s View

    The court reviewed evidence from Ivan’s will drafting lawyer to determine if he had testamentary capacity at the time. Despite his cognitive decline, it was found that he understood:

    • The nature of a will;
    • The nature of his property disposed of in the will; and
    • The people who stood to benefit from the will.

    Further, a medical examination from shortly after the will was executed was reviewed by the court. The examination found that Ivan was experiencing ‘fairly advanced dementive illness’. However, the examining doctor noted that, at the time, Ivan had no delusions and a good understanding of his assets, beneficiaries, and the nature of the will. Ultimately, the court found that Ivan had testamentary capacity at the time he drafted the new will. In the judgment, several cases which acknowledge that testamentary capacity can exist despite the presence of cognitive decline. The judge granted the defendant’s request and ordered that the 2015 will was valid.

    Reminders for Will Writers

    As the Nykoryak case and other BCSC case law demonstrates, testamentary capacity can be found even where the testator is experiencing cognitive decline. However, even where a will written by a testator with cognitive decline is found valid, the estate and beneficiaries can ultimately lose out on time and money from resulting litigation. To minimize risk of litigation, will writers should update their will frequently, and ensure to seek help from a professional who can assess and provide evidence on their capacity if necessary. 

    Understanding the limits of testamentary capacity in BC estate law is important for all will writers and beneficiaries. Further, planning in advance for potential future incapacity is an essential part of a robust estate plan. Remember, you can lose capacity unexpectedly at any time, particularly later in life. If you’re curious about the impact of potential capacity issues on your estate, or an estate you stand to benefit from, 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.

  • Deathbed Gifts in British Columbia

    Deathbed Gifts in British Columbia

    In estate law, gifts and the context under which they were given is one of the most common issue that families litigate over. There are many different types of gifts a testator can give, each with specific requirements to be legally valid. One of the biggest reasons family members raise claims is that they believe a gift was given under unfair or suspicious circumstances. Some claims assert that a transfer was never intended to be a gift at all. In this article, we’ll discuss the concept of Donatio mortis causa, or deathbed gifts. These are gifts given when the gift giver (donor) is contemplating death.

    Concerns Over Gifts Given Late in Life

    One of the easiest and most efficient ways of gifting assets from your estate is inter vivos gifting. This is giving gifts while you’re still alive instead of through your will. Inter vivos gifting has many benefits for will writers, including reducing probate fees and allowing them to watch their loved ones enjoy the gift. However, inter vivos gifts are often the subject of estate disputes. Sometimes, family members expect to inherit an asset, only to find that it has been gifted to someone else already. In these circumstances, the family member might raise a claim that the asset wasn’t intended to be a gift, and is held in a constructive trust. To avoid conflict, will writers should make their intentions clear in writing when making significant asset transfers. 

    Another concern which can give rise to litigation is uncertainty over the testamentary capacity of the donor. To make a valid gift, the donor must have capacity, and must not be under undue influence from other parties. Lack of capacity and undue influence can invalidate a gift, meaning the asset becomes part of the estate’s residue. Beneficiaries may be very concerned when their loved one gives away a large asset near the end of their life. However, deathbed gifting is valid in many circumstances, and there is extensive case law demonstrating valid deathbed gifting. 

    It is always best to plan gifts in advance and be clear about your intentions.

    Elements of a Valid Deathbed Gift

    Legally, a gift is a ‘voluntary and gratuitous transfer of property’ from which the donor of the gift draws no personal benefit. Beyond the basic legal criteria of a gift, a deathbed gift must: 

    1. Be made in contemplation of death;
    2. The gift is effectively delivered to the donee (receiver of the gift); and
    3. The gift is only complete upon the death of the donor.

    Let’s take a closer look at the requirements of a deathbed gift.

    1: Made in Contemplation of Death

    The gift must be motivated by the gift donor’s contemplation of their own death. This means that the donor was contemplating the prospect of their death while making the gift. The primary motivation of the donor to give the gift is the imminence of their death. However, this does not mean that the donor must expect or be certain of their imminent death.

    2: Effective Delivery of the Gift

    The gift must be effectively delivered to the donee. This could simply mean the donee takes the physical asset into their possession. When ownership has technical requirements, those must be satisfied before the donee is said to have received the gift. For example, if the gift is land, necessary documents for the transfer of that land must be completed and filed. 

    3: Completion Upon the Death of the Donor

    Any gift is only complete or “perfect” after specific criteria have been met to effect the transfer. An imperfect gift might be void or unenforceable by the donee until the conditions are met. In the case of a deathbed gift, the gift is not ‘perfected’ or complete until the death of the donor. 

    An Example From Case Law

    A commonly cited case in this area of law helps clarify what “contemplation of death” might entail. In Thompson v. Mechan (1958), the deceased was concerned about upcoming air travel. He gave Mechan the keys to his car and blank ownership documents before traveling. There was no incident with Thompson’s air travel, but he passed away from an unrelated medical condition just days after the flight. Mechan argued that the transfer of the car was a valid gift under donatio mortis causa, and the gift was complete upon Thompson’s death. 

    The court found that the gift was not a deathbed gift because it was not made in genuine contemplation of death. The court found the risks associated with air travel were no more than ordinary risks people face in everyday life. Further, even if the donor had reasonably contemplated death resulting from the air travel, the gift would not have been perfected upon his death because he died of unrelated causes. Ultimately, the court ordered Mechan to either return the car to the administrator of the Thompson estate, or pay her the value of the car.

    Reminders for Will Writers and Gift Givers

    While the law provides mechanisms to respect and enforce the wishes of testators, it is always best to make your intentions clear in writing when giving gifts. This simple act can help avoid costly and stressful estate litigation after your death, sparing your loved ones additional hardship during an already challenging time.

    Deathbed gifting and inter vivos gifting can occasionally cause controversy amongst beneficiaries, so it is best to avoid uncertainty by created a detailed estate plan and keeping it updated. If you’re ready to begin drafting your first estate plan or make changes to an existing one, 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.

  • Estate Litigation- Who Pays the Legal Costs?

    Estate Litigation- Who Pays the Legal Costs?

    Estate litigation can be a complex and expensive process. Understanding the legal costs involved is crucial for both executors and beneficiaries facing litigation or those considering raising a claim. In this article, we’ll take a look at how B.C. Courts usually determine who is responsible for legal fees.

    What are Litigation Costs in Estate Disputes?

    When a Court assigns ‘costs’ to one party, they are ordering them to pay for the other party’s legal expenses. These can represent the expenses of legal advice and representation and court fees related to the case. Ordering costs provides compensation for the winning party for the time spent on the issue, encourages settlement and can discourage frivolous lawsuits.

    There are two types of litigation costs which a Court can assign in British Columbia. The first is known as ‘part and party costs’. These are calculated based on a set of rules set out by the B.C. Supreme Court. These rules consider the complexity and social importance of the case, and the amount of time spent in trial. These fees place the winning party in the financial position they would have been in if they hadn’t had to litigate.

    Litigants must be aware that fees can add up quickly during lengthy court battles.

    Another type of litigation costs the Court can award are called ‘special costs’. These are only awarded in unusual circumstances. Special costs are aimed at compensating a winning party where the other party has behaved inappropriately. For example, if the losing party engaged in fraud or harassment in the course of their litigation. These fees are usually above and beyond the actual legal fees incurred by the winning party. Litigants can apply to the Court to be awarded special costs if they feel the other party has behaved truly reprehensibly.

    The Courts’ Approach

    Generally, in all types of litigation, the Court will assign the costs of legal fees for both parties to the “losing party”. In some instances, there is no definite winner or loser of a case, but blame for the issue is apportioned between the parties. Above all, the rule for assigning costs is that they are “in the cause” of the litigation. This means that the party who ’caused’ the legal fees, whether by bringing a frivolous lawsuit or by their actions which gave rise to the litigation will be responsible.

    I’ve Been Awarded Litigation Costs- When do I Receive Funds?

    Given that litigation expenses are usually assigned to the losing party, expenses are assessed at the end of a case. If a case goes to trial, a Judge will usually make an order for costs in their final decision. If a case has reached a settlement before trial, a settlement agreement will usually provide details on how and when litigation expenses will be assessed. Once you have received an order, you can arrange to speak with the registrar. The timeline for receiving payment for legal expenses varies from case to case.

    If you have questions or concerns about a potential estate litigation case, contact an experienced estate lawyer today.

  • Court of Appeal Changes Will After Death of Will Writer

    Court of Appeal Changes Will After Death of Will Writer

    The recent BC Court of Appeal case of Tom v. Tang (2023) demonstrated again that BC Courts are willing to change the contents of a will under the Wills, Estates and Succession Act (WESA). In this blog, we’ll cover the Court’s decision and the steps will writers can take to avoid estate litigation.

    Facts of the Case

    In the recent case of Tom v. Tang, three siblings claim that their mother’s will is unfair. The will left equal shares of the estate to the five children. However, the sale proceeds of her house were only left to two. The result was that 85% of the estate’s value was left to only two of the five children. Ms. Tang gave the proceeds of the home to the two children in recognition for their contribution to her care in the final years of her life. 

    The three siblings who received lower inheritances claimed the will was unfair and should be varied by the Courts. The siblings who received larger inheritances argued that the Court must enforce the wishes of the will writer, Ms. Tang. 

    The Court’s Decision

    Siblings are frequently party to estate disputes, either raising claims against or defending the validity of their inheritance.

    The Court considered the testamentary wishes of the will writer and the rationality of the contested provision. Ultimately, the Court found that the division was unfair or irrational under WESA. Considering each child’s contributions to the family during their adult life, a more equal division would be reasonable. The Court rewarded the two siblings 30% each of the estate’s total value, and about 14% to each of the remaining three children. This balanced the fair division of assets to each child while acknowledging the will writer’s intention of rewarding the two siblings for their extra efforts.  

    Varying a Will Under WESA

    In British Columbia, WESA regulates estate distribution and planning.  Under WESA, Courts can change the provisions of a will to benefit family members that were excluded or treated unfairly. Section 60 of the Act allows interested parties, such as children or spouses, to challenge an unfair will. However, not just anyone who feels they should have been included can contest a will. For more on eligibility for challenging a will, check out our previous video blog by Darren Williams.

    The Act requires will writers, or testators, to provide adequate maintenance for interested parties. There are a limited number of reasons that a testator can validly exclude, for example, a child from their will. If a dependant hasn’t been provided adequate provision in a will, they may be able to raise a claim. 

    Steps to Avoid Potential Estate Litigation

    There are steps that testators can take to ensure their will is WESA compliant and potentially avoid litigation. First, testators should ensure that they carefully consult with an estate lawyer when planning and writing their will. The benefit of drafting with a lawyer over doing it yourself or with a notary is that a lawyer can foresee potential legal issues which may cause litigation later on. Being able to identify common pitfalls and predict problems in your estate plan can save time, money and stress.

    Second, testators should ensure that they are very clear with their intentions when giving large gifts during their lifetime. This can include cash gifts, real estate or valuables which many family members may have a special interest in inheriting. By ensuring that they record all gifts in writing and expressly state that the transfer was a gift, testators can avoid ambiguity. Working with a lawyer to record your intentions for large transfers can help to avoid undue influence or testamentary incapacity claims. If the intention to gift is unclear on large gifts, potential beneficiaries may claim the transfer was not a gift on the basis of resulting trust or the testator’s legal capacity to make the transfer. 

    If you’re looking for specific advice on how to reduce risk of litigation arising from your will, contact an experienced estate lawyer today. We’ll help create an estate plan for you unique situation and needs. 

  • You signed a waiver, but did you say goodbye to your right to sue in BC?

    You signed a waiver, but did you say goodbye to your right to sue in BC?

    A waiver (or release) is an incredibly common and powerful clause.  Hardly a day goes by without coming across one or more of them.  Getting on a chairlift or a ferris-wheel, parking a car, or even leaving clothing at a dry cleaner often involves agreeing to a waiver.  A waiver is an agreement not to claim for damages caused by someone else’s carelessness.  They are often effective in avoiding liability, however, under certain circumstances they will not be enforceable.

    Agreeing not to sue

    The core purpose of a waiver is to promise not to sue for any injury, death or property damage arising out of an activity.  This includes not suing for loss caused by the clear negligence of another person.  In British Columbia, claims against businesses and activity operators are barred as a result of an agreed upon release.

    Insurance companies like releases because they reduce the number of claims they have to pay because they reduce the likelihood their insured will be successfully sued.  

    Businesses like releases because they reduce the cost of their insurance.  If a business cannot get liability insurance, a well-drafted and presented waiver enables a business to avoid legal responsibility for negligence of the business and its employees.

    The idea that a person may be badly injured by the obvious negligence of another, and be without legal recourse is frightening. However, just because a person has signed a release, does not mean that the waiver will be enforceable (effective).  In order to be effective, the waiver must meet specific legal tests.  If the waiver fails to meet these requirements, a person or business may still be successfully sued.

    The legal tests waivers must meet to be effective

    Many releases are enforceable, such as the one upheld in a recent case (Loychuk v Cougar Mountain Adventures Ltd.).  However, for a waiver to be upheld, it must meet several legal tests.  In general, the waiver must meet the following three tests:

    1. Must actually apply to the facts of how the accident occurred;

    2. Must not be unconscionable; and,

    3. Must not be against public policy.

    1. A waiver must apply to the facts of the accident

    Waivers must apply to the facts of the accident. To meet this test, the court considers whether the terms of the waiver included a description of the risks that caused the person’s injury.  A release only covers risks considered at the time the waiver is signed or accepted.

    The cause of the injury that the release seeks to avoid legal responsibility for, must be clearly described in the waiver; and, be generally foreseeable by the parties. For example, if you are skiing it is likely in your mind you might ski off a poorly marked trail and injure yourself. It is foreseeable to be injured in an avalanche that could have been prevented. However, being shot by an employee carelessly handling a firearm would not be foreseeable.  You would also not imagine that poor practices in the ski lodge would result in food poisoning.  Events that are not foreseen, are not covered by a waiver.  

    Waivers must use clear language to be effective.  The courts will consider whether the participant actually understood what they signed.  A signed release is assumed to have been read and understood.  However, being told to sign a release in a hurried or casual manner; or, failing to give adequate time to read and understand the release will result in the waiver being ineffective.  This is because the service provider knew or should have known that the participant was unaware of the legal or practical effects of signing the waiver.  Service providers and businesses must take reasonable steps to advise those who are signing waivers, even though there are no special obligations to ensure people have understood what they have signed.

    2. A waiver must not be unconscionable

    Secondly, a valid waiver must not be unconscionable.  In other words, even if the release applies to the facts of an accident, the court may find the waiver unenforceable because it is unconscionable.  A release is unconscionable when a person has abused their power to get the release signed and then relies upon the waiver. 

    That said, participants almost always have the choice between agreeing to the release and participating, or not participating at all.  Courts uphold releases even in cases where the participant travels long distances to participate in an activity, only to find that if they don’t accept the release they will be turned away.  The courts do not generally view inconvenience suffered by a person because they cannot partake in an activity unless they sign a release as an inequality in bargaining power that makes signing the waiver unconscionable.

    3. A waiver must not be against public policy

    The third main requirement of a valid release is that the waiver must not be against public policy.  That is, the waiver cannot be contrary to the interests of the general public as a whole.  In BC, courts have rarely exercised the power to overturn a waiver because of public policy.  Releases in adventure tourism activities, for example, generally do not give rise to public policy concerns because, by definition, these activities have inherent risk and people generally expect some risk.

    Many activities with reasonable care of the business, should be low risk.  A court might find it is against public policy to enforce a release where doing so discourages routine safety practices.

    When in doubt seek legal advice out

    Properly drafted and presented waivers can provide business owners with strong legal protection from claims.  Business owners should seek legal advice to draft the waivers they use to ensure they can be relied upon if and when needed.  

    Those injured should never assume a signed release provides a complete bar to suing for damages. Injured victims should seek out legal advice before assuming they cannot claim fair compensation. This is particularly true in cases where there has been significant injury, property damage or death.  Under those circumstances, it is not unreasonable to ask a judge to decide whether the release is enforceable.

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • Acts of Dog & the Law in BC: Risk & Responsibility

    Acts of Dog & the Law in BC: Risk & Responsibility

    Personal Injury & Property Damage – Who Fetches the Bill for Acts of Dog?

    What are the legal and financial consequences when a dog injures somebody or causes property damage?  What can dog owners do to reduce or avoid those consequences?  Those are the questions being answered in this week’s blog on the acts of dog.

    It’s important to note that when it comes to legal responsibility for an act of dog or the resulting dog claim, it applies not only to dogs that you own, but also dogs the are under your care or even those dogs that are on your property with your permission.  Dog owners can often be sensitive to the criticism of others, not unlike how some are sensitive to criticisms of their children.  After all, dogs aren’t just man’s best friend – they are often valued as members of our families.

    This blog is not about any specific breed of dog, nor is it about how their owners train or care for them.  Any breed of dog can be either completely harmless or dangerous, depending on the circumstances.  This blog discusses how the law can hold a person responsible for injury, damage or death caused by a dog, and why having insurance is critical. 

    3 Ways People are Held Accountable by the Law for Acts of Dog

    There are three principle ways that the law holds people responsible for harm caused by a dog:

    • General Negligence Law
    • Occupiers Liability Law
    • Scienter

    General Negligence Law

    General negligence law requires that if harm to others from the behaviour of the dog is foreseeable, the person whose control the dog is under has a responsibility to prevent the harm.  This is true regardless of the ownership of the dog, or the location of the dog.  For example, if a person takes a friend’s dog to an on-leash park, and lets the dog off the leash, and the dog knocks an elderly person to the ground, breaking their hip, the person borrowing the dog will likely be responsible for the injuries caused.  It wasn’t their dog, it wasn’t their property, but because they had control of the dog at the time, it is their responsibility.

    Occupiers Liability Law

    The second way that the law holds people legally responsible for the acts of a dog is when the damage occurs on property controlled by you.  This is because in BC a person who controls property must take reasonable steps to ensure activities conducted on their property do not pose unreasonable risks to others on their property.  For example, a person decides to host a backyard barbecue and invites all of their friends to bring their dogs. It is reasonable to think that some of the dogs won’t get along, but none the less, the person hopes for the best. During the barbecue, a dog fight ensues, and a guest is badly bitten, suffering nerve damage to their dominant hand.  They find themselves unable to work as a result.  Even though it was not the property owner’s dog that did the damage, because of the property owner’s duty to ensure people are reasonably safe in using the property, the property owner may be held responsible for the injuries.

    The Law of Scienter

    The last legal basis for liability is based on an old legal maxim called scienter – which is latin for, knowledge of poor behaviour.  Scienter means that if the dog has demonstrated a dangerous behaviour previously, and the owner of the dog knew about, the owner may be liable if that behaviour hurts someone.  For example, a dog owner is aware their dog likes to chase motorcycles because they have seen the dog chase motorcycles.   One day the owner forgets to tie the dog up and it chases another motorcycle and the motorcyclist loses control and is badly injured. The dog owner would likely be entirely at fault for the accident and held responsible for the resulting injuries.

    How to reduce the risk of acts of dog?

    These are all tragic, but entirely realistic scenarios.  Given this, what can a dog owner due to ensure that man’s best friend doesn’t do serious financial damage?  First, dog owners should take care to have their dog under a degree of control that is appropriate for the circumstances.  Second, dog owners should ensure that they are properly insured for the risk that their dog could cause injury or property damage.

    Many people don’t know that their homeowner’s insurance policy includes $1 million in liability insurance.  This insurance will cover a person’s costs for a legal defence, as well as any money that is needed to pay for the damages caused by their dog.  This is true even if the accident happens when they and the dog are away from the property, such as at the park.  

    The same is true of renter’s or tenant’s insurance policies, and such insurance often costs around $35 per month.  In the last 10 years, approximately 25% of all claims made under homeowner’s and renter’s insurance policies were due to a dog causing injury or property damage.  In the last several years, the average value of a dog related insurance claim has been between $35,000 and $50,000.  Obviously, no dog owner would want to be responsible for this type of debt.  So, being covered by this kind insurance is wise, and can be bought separately if needed.

    In closing, dog owners, regardless of the breed, should do the responsible thing by ensuring they’ve reduced the risk by exercising reasonable care and control of their dog and by being appropriately covered by insurance.  Rarely does any dog intend to cause any harm, but unfortunately, the intention of a dog matters not when a dog owner is being sued for damages.  I hope you found this blog helpful and thank you for reading.

    We hope you have learned something from this week’s video blog.  Please feel free to like us on Facebook, follow us on Twitter, or subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  League and Williams serves clients across British Columbia and is headquartered in Victoria, BC.  Our expertise is in injury law, estate disputes and marine law.  If you are injured and would like a free consultation, contact us via phone at 250-888-0002 or via email at info@leaguelaw.com.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Hindsight is 1080p: Video Evidence and ICBC Motorcycle Claims

    Hindsight is 1080p: Video Evidence and ICBC Motorcycle Claims

    Motorcycle Ride Ends in Tragedy

    It was a beautiful September day for a ride.  Mr. G and his friend rode their Harley Davidsons to a local B.C. restaurant to enjoy lunch and then began the casual trip home.  Both were seasoned riders with more than 30 years of experience riding at the time.  Unfortunately, the trip home ended when Mr. G hit the back of the stopped vehicle making a left turn, and he suffered life altering injuries.  The driver of the truck claimed that Mr. G was at fault for the accident for failing to keep proper lookout, and failing to stop in time or avoid the collision. Meanwhile, Mr. G claimed that the driver of the truck was at fault for the accident, having stopped abruptly and failing to signal his intentions to make a turn.  The lack of agreement and convincing independent evidence about what had happened on September 14, 2013 led to a three-day trial in February 2017 and a BC Supreme Court decision dated May 19, 2017.

    Liability in Dispute – Court Left to Decide Fault

    The BC Supreme Court relied on the evidence given by experts and other witnesses to decipher what had happened that day and determine who was at fault for the accident. There were discrepancies between the testimony of the driver of the truck, the motorcyclist and other witnesses.  Notably, the legal burden was on the motorcyclist, approaching from the rear, to prove that he was not at fault for the accident.  Ultimately, the court found that the motorcyclist was 75 percent at fault while the driver was 25 percent at fault for the accident.

    This means that when damages suffered by Mr. G. come to be assessed by the court, the driver of the truck is responsible for 25% of Mr. G’s damages (such as pain and suffering, lost wages, uninsured medical expenses, etc) and Mr. G. will be unable to collect or be out of pocket the remaining 75%. If the motorcyclist was entitled to $400,000 in damages because of the accident, he would be awarded $100,000 from the driver of the truck.

    Video Evidence Can Mean More Just Results

    What if the motorcyclist had been wearing a helmet camera at the time of the accident? What if some other driver had dash camera footage of what had happened?  What if there was clear, compelling video evidence about what happened on the day of the accident?

    The matter might never have found itself before the courts 3.5 years after the accident, or that if it did find itself in court, that a much shorter (or more certain) trial would have been needed, meaning the court might have been able to address the issue sooner. It is likely  that expensive expert opinions about what happened also would not have been needed.  It is also possible that the allocation of fault might have been substantially different.  Ultimately, it is likely that the motorcyclist would not have faced as much uncertainty and been able to resolve his claim earlier and without the risk of trial.

    Having worked for accident victims, including motorcyclists, over the past 17 years, League and Williams understands the the value of clear, persuasive evidence cannot be understated when it comes to achieving timely and fair results after an accident.  Video evidence can be very helpful to accident victims. Thankfully, it is becoming increasingly common for video evidence from dash cams or helmet cams to be available in the wake of a crash.  To help, League and Williams is giving away two, hi-def helmet cameras on July 12, 2017 – see our Facebook page for details.

    If you, or someone you care about has been involved in an motorcycle accident contact us at 250-888-0002 or by email at info@leaguelaw.com for a free consultation. Our priority is our client’s recovery. We do not get paid until you do, and are BC injury law experts

  • Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Bargaining for Elder Care – the Promise Made

    There were three adult children, Gloria, Max and Nate – each of whom had been promised a third of their parent’s estate including the family home by their father.  As is common, when their father died, everything was left to their mother.  As time went on, the mother was eventually unable to care for herself at home.  Wanting to keep their mother in her home, Gloria, unwilling or unable to care for their mother herself, made a deal with her brother, Max: if he moved back to Victoria, BC, Canada from England to care for their aging mother until her death, that she would agree to sell to him her expected one third interest in the family home, a home that had been built by their father some 60 years earlier.  The home having special meaning to Max, Max packed up his life and made the move, caring for their mother until her death three years later in 2010.

    Deception, Death & Disinheritance – a Recipe for an Estate Dispute

    Gloria held sway with their mother – so much so, that upon their mother’s death, Gloria revealed that their mother had transferred all of her assets to a trust of which Gloria was the only beneficiary.  Gloria’s actions resulted in the entire disinheritance of both brothers, betrayed by a sister who used her influence over their mother to exclude them from the estate. To make matters worse, Gloria then proceeded to refuse to sell to Max the interest in the family home, breaking the pledge she had made to him.

    Dismayed, Max sought to right the wrong that had been done and disputed the estate – suing not only for his fair share of the estate from the disinheritance but, also to hold his sister to the promise she had made to sell Max a one third of interest in the family home.

    Uncertain Certainties and the Law – Promises and Probabilities

    The disinheritance went to trial and the trial judge found Max’s sister had exerted undue influence over her mother in causing the mother to put all of her assets in her daughter’s name.  As a result, the judge ordered all of the assets back into the mother’s estate, and divided the estate equally into thirds.  Importantly, the trial judge also found that Max’s sister had to make good on her promise to sell her one-third interest to Max, because although the sister did not own the interest in the home when she made the promise, it was reasonable for Max to expect that Gloria would after their mother died. 

    In holding Max’s sister to her promise, the trial judge found the key components of “proprietary estoppel” were met:  there was a promise by the sister, that Max reasonably relied on, that was unfairly broken and caused Max detriment.  However, Max’s sister appealed to the BC Court of Appeal, and two of three judges found that Max’s sister could not be held to her promise because she didn’t own the one-third interest in the home at the time she made the promise, and it was not “certain” that she ever would.

    Is it reasonable to require certainty when making a promise about something that a person does not own at the time the promise is made (but is likely, but not certain, to own in the future)?  Are contingent promises valid – or are those who rely on them without recourse if the promise maker reneged?  These questions merited an appeal to the Supreme Court of Canada, which heard the case on May 26, 2017.  

    The Argument Before the Supreme Court of Canada

    League and Williams’, Darren Williams appeared before the 9 judges of the Supreme Court of Canada to argue the case on Max’s behalf.  Mr. Williams argued that the BC Court of Appeal was wrong in insisting there be absolute certainty in the sister’s ability to make good on the promise.  What followed was a lively debate with the 9 justices on the level of probability needed in order for a person to be held to the promise that was made.  Does the outcome of the promise have to be as certain as death or taxes?  Or is reasonable probability enough?  

    The decision of the Supreme Court of Canada is expected in the fall of 2017.  Those who are making contingent promises and those who are relying on those same promises should look forward to the clarity this case may bring to this area of law in Canada.  This blog will be updated once the decision is issued.   

    Have an estate dispute?  The lawyers at League and Williams are here to help and will fight for your fair share of an estate.  We serve clients across British Columbia, offer free consultations and do not get paid until you do.  We may be contacted at 250-888-0002 or via email at info@leaguelaw.com. If you have suffered an unfair disinheritance, do not delay, it could cost you your fair share of an estate. 

  • Parents Beware: ICBC child injury claim – the need to knows

    Parents Beware: ICBC child injury claim – the need to knows

    There is a common mistake made by people when dealing with an ICBC child injury claim.  The mistake is about when a minor, that is someone under the age of 19, loses the right to claim for ICBC benefits after an accident.  Many people know that after a car accident, ICBC must provide rehabilitation benefits and a partial wage loss replacement.  These benefits include payment of some chiropractic and physiotherapy treatment, and wage loss benefits of up to $1,200 per month.  These are called “no fault” benefits because a person is entitled to them even if they were at fault for the accident.

    Many people also know that if they have been injured as a result of someone else’s fault, that they have two years to start a court action to preserve their right to be compensated for the injuries.  This is called a limitation period.  In BC, the Limitation Act provides, in simple terms, that a person has two years from the day they discover they have been harmed to start that court action.  In most accident cases, like car accidents, this is from the date of the accident because that is the date it is obvious you have been injured

    Importantly, the Limitation Act also provides that for a minor, again in BC that is someone under the age of 19, their limitation period of two years does not start to run until their 19th birthday.  This is because a minor is under what is is called a “legal disability” and their right to sue cannot be prejudiced while they are a minor.

    Many people do not know, however, that a two year limitation period also applies in respect of the right to make ICBC pay for no fault benefits.  That is, if ICBC has refused to pay for no fault benefits, perhaps because they believed the injuries were not caused by the car accident but rather from some other event, then there is only two years from the date of the accident or the last day ICBC paid benefits, to preserve the limitation period by filing court documents.

    Importantly, when it comes to an ICBC child injury claim, the same rule that the running of a minor’s right to sue for compensation doesn’t start to run until their 19th birthday, does not apply to no fault benefits.  In other words, a minor, even someone who is 10 years old for example, must sue ICBC within two years of the accident date or the last day they received no fault benefits, or their right to those benefits will be forever lost.

    Parents of children injured in an motor vehicle accident should bear this in mind when making their ICBC child injury claim, because parents are responsible to protect the legal rights of their children.

    I hope you have learned something about the law from this blog.

    Please feel free to like us on Facebook, follow us on Twitter, and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.  If you, or someone you care about has been involved in a car accident, contact us at 250-888-0002 or via email at info@leaguelaw.com for a free consult. We do not get paid until you do and are BC injury law experts.

  • Red Flags with Victoria’s Protected Bike Lanes and Green Boxes

    Red Flags with Victoria’s Protected Bike Lanes and Green Boxes

    Protected Bike Lanes on Pandora Open to Mixed Reviews

    On Monday, May 1, 2017 the Pandora St. protected bike lanes officially opened to the public. The intent of this two-lane track that runs from Wharf St. to Cook St. is to separate bike traffic from car traffic and make cycling more efficient and safer.  While the intention is honourable, the immediate result has been confusion and many near-misses between motorists, pedestrians and cyclists.  Road (and crosswalk) users will have to adapt to significant changes in their usual behavior at intersections along Pandora.  However, it should be noted, where this kind of bike lane has been implemented elsewhere, improvements in safety have been realized.

    Motorists, Cyclists and Pedestrians Face a Learning Curve

    Motorists will no longer be able to make right turns on red lights at intersections, and must stop behind the green bike boxes away from the intersection.  Cyclists have to maneuver to enter and exit the bike lanes through “green boxes” that are far from intuitive and involve turning right to go left, and vice versa. The City has had to produce a four-minute video to explain how the protected bike lane works – it is doubtful many cyclists, motorists or pedestrians will absorb the video.  The City has stationed employees at the intersections to explain to road users how to navigate the new “facilities” – it is unclear how long these employees will be stationed there as the tourist season progresses.  The forecast calls for confusion and flared tempers, and sadly a significant chance of serious injuries as people adjust to this new norm.

    No Requirement to Use the Bike Lane Provided

    While many motorists are glad to see the dedicated bike lanes, some are not.  Even some cyclists ask if they have to use the bike lanes, many of them nervous that motorists and pedestrians won’t know how to behave around the bicycles that enter and leave the green boxes in a bizarre fashion that involves turning their bikes 180 degrees. However, whether people like it or not, the law does not require cyclists to use the protected bike lanes simply because they are available. If a cyclist is injured by a vehicle outside of the protected bike lane, the court will not find the cyclist negligent for not using the bike lane just because it was there, provided the cyclist’s actions were not otherwise the cause of the accident.

    If Protected Bike Lanes Prove Hazardous, Can the City be Held Liable?

    Importantly, BC courts have said: “a municipality has a duty to maintain roads in a reasonably safe condition. The duty extends to taking reasonable steps to prevent injury to users of the roads caused by hazardous conditions… such as those arising from the design or configuration of the road.”  The point to be drawn from the foregoing is that a municipality’s duty extends to maintaining and configuring its roads, such that they are safe for use by someone using ordinary care.

    How cyclists are required to navigate Victoria’s new bike lanes, as well as how motorists and pedestrians are expected to behave around them, is now far from ordinary for the typical road user (watch the video and you will see).  This means that the City may find that a cyclist, pedestrian or motorist is injured because of a confusing or otherwise unsafe road design that a person exercising ordinary care would not expect, may hold the City responsible for their injuries. Such a claim does not involve ICBC paying for the City’s negligence.

    Many people do not know that there is a very short time limit for notifying the City that its design or implementation of the new bike lane has caused someone harm. The BC Local Government Act states that a local government “is in no case liable for damages unless notice in writing, setting out the time, place and manner in which the damage has been sustained, is delivered to the municipality… within 2 months from the date on which the damage was sustained.”  This means that if the City is not notified of an injury within 60 days of the accident, the City will bear no responsibility regardless of how severe the injuries are.  Hopefully no injuries arise as tourists and locals learn how to use the new protected bike lanes, but if they are, they should not overlook the requirement to give notice to the City within the 60 days required by the Local Government Act.

    Darren Williams is the principal lawyer with League and Williams and leads the personal injury area of practice of the firm.  If you or a loved one has been injured in an accident, we would like to help you recover.  League and Williams offers free consultations, does not get paid until you do and is focused on ensuring that you recover to your fullest potential.  League and Williams is headquartered in Victoria, BC with satellite offices in Duncan, Nanaimo and Campbell River.  We may be contacted via email at info@leaguelaw.com or phone at 250-888-0002.