Blog

It’s The Law – Despicable Dave

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

Despicable Dave loved his mother. So, when she started to decline mentally, he arranged to have her sign a Power of Attorney with her local notary, appointing him as Attorney for her. This document allowed him to manage her finances, and gave him access to her accounts so that he could pay her bills and otherwise manage her affairs. After Mom became incapable, he dipped into her accounts to pay for expenses that he claimed he incurred in caring for her. He wrote cheques to himself, and withdrew cash regularly, to pay for things like maintaining his vehicle. He rationalized this by claiming that he only kept his vehicle on the road because he had to visit Mom daily at the care home to assist her with eating lunch and dinner (although the care home had such assistance available to do so). When Mom died, Dave did not tell the Bank. He continued to use his Power of Attorney to withdraw large sums of money, payable to himself. He used the money to fund what he claimed were expenses related to the clean-up and renovation of Mom’s condo (including paying himself general contractor fees), to prepare it for sale. Eventually, the Bank became aware of Mom’s death and forced Dave to apply for probate of Mom’s estate. He did so, but did not notify his Sweet Sister Sue, that he was doing so (though he was required to). When the condo was sold by him as executor, he told Sue that he had a cheque for her half of the estate, according to the terms of the Will. He declined to give her any details (or receipts) about how he had managed Mom’s money, both before and after Mom’s death, even though Sue expressed concern about how small her cheque was to be. Sue demanded that he provide information about how he had managed Mom’s affairs.

Both Sue and Dave started lawsuits. Sue wanted a full accounting of what Dave did with Mom’s funds, and also to have Dave removed as executor (Dave stepped down in response, before that lawsuit went to court). Dave wanted more than ½ of the estate that he was given in the will, because he felt he had been so involved in Mom’s affairs and had done so much for her.

If you were the Judge, how would you decide? Continue reading “It’s The Law – Despicable Dave”

It’s The Law – A Monstrous Mistake

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

On October 31, 2013, Mr. Frank Enstein was travelling to a Halloween party. He had come to a complete stop at a 4-way stop intersection and was waiting for his turn to go, when he was rear-ended by Mr. Count Dracula. As a result of the accident, Frank suffered soft-tissue injuries to his back and neck. He contacted ICBC shortly thereafter and began corresponding with the ICBC adjuster assigned to his claim. Frank started with some physiotherapy and continued his treatment, contacting the adjuster on a regular basis with updates on his injuries. Eventually, the adjuster started making offers to Frank to try to get his claim resolved. However, Frank was still suffering from neck and back pain and was reluctant to settle. The last time Frank spoke with the adjuster was in the summer of 2015 when he advised the adjuster that he was still having pain and he would contact him when he started feeling better.

In November of 2015 Frank, having been given a clean bill of health from his doctor, Dr. Jekyll, called the adjuster looking to settle. The adjuster advised him that the claim had expired and he was out of time. Frank went to a lawyer to see what he could do.

Unfortunately for Frank, he had waited too long. A claim for personal injury needs to be filed within two years of the date of the accident (which is referred to as the “limitation date”). Since it was now over two years since the date of the accident, Frank’s claim had expired and he could not pursue a claim for damages against the other driver.

There are different limitation periods that apply in different scenarios. To avoid the risk of missing a limitation date, you should always seek legal advice, whether you intend to retain legal counsel to represent you in your legal matter or not.

It’s The Law – Drunk Passenger Injures Designated Driver

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

The Plaintiff was at a soccer game with her boyfriend. The boyfriend got drunk and argumentative. The Plaintiff decided that they both should leave and took the driver’s seat of her own vehicle. The cranky and drunken boyfriend got into the passenger seat. During the trip home the boyfriend grabbed the steering wheel a couple of times which did not affect the movement of the car and the Plaintiff thought that he was just trying to scare her. Once they were onto the freeway heading east towards Chilliwack, all of the sudden, the boyfriend grabbed the steering wheel again but this time he did not let go. The vehicle crashed, the boyfriend was killed, and the Plaintiff was seriously injured.

The Plaintiff brought a court case against the boyfriend and was awarded a judgment for nearly $800,000. Of course, the estate of the boyfriend did not have sufficient funds to pay out the judgment so the Plaintiff looked towards ICBC to pay her the judgment.

In BC, an injured Plaintiff can get up to $200,000 from ICBC if the Defendant is un-insured. If the Plaintiff had been injured by an intoxicated driver and ICBC breached that driver, the Plaintiff would be entitled to be compensated by ICBC for the amount of the underlying policy limits.

In this case, ICBC refused to compensate the Plaintiff because the Defendant was a passenger and it was the Plaintiff’s own policy, on her own vehicle, that was in question.

If you were the Judge, how would you decide? Continue reading “It’s The Law – Drunk Passenger Injures Designated Driver”

It’s The Law – Till Death Do Us Part

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

Don and Debra lived together in unwedded bliss for almost ten years. When they started to live together, neither of them had much money, but they were able to purchase a home of their own with basically no money down. The property and mortgage had to be put into Don’s name only as Debra had some credit problems. They both took a lot of pride in their home and over the course of their ten year relationship, they both put a lot of hard work and money into the property, including renovating and making regular lump sum mortgage payments. After about ten years, the home had tripled in value from when they had initially purchased it and the mortgage was paid off in full.

Unfortunately, Don and Debra had a difference of opinion on whether to turn the spare room into an art studio or a man cave. The two of them had been growing apart as of late and this was the tipping point for Debra so she left the home. She made it clear to Don and her friends that she no longer wished to be with Don and that their relationship was over.

After two months apart, Don passed away suddenly in his man cave. Don had changed his will after he and Debra separated such that he wanted to leave the house to his daughter from a previous relationship. This daughter, Diane, also acted as the executor of his estate.

Diane and Debra did not get along. Debra approached Diane after learning of Don’s passing inquiring about the house. Diane said the house was going to be hers now based on the Will and there was nothing Debra could do about it.

If you were the Judge, how would you decide? Continue reading “It’s The Law – Till Death Do Us Part”

It’s The Law – Will It Be A Will?

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

Meticulous Martha was a childless widow who cared greatly for her extended family and friends. To show her love for them, she prepared a detailed will using a self-help will kit and attached a few other documents listing specific items that they were to receive, giving away the rest of her estate to 12 charities. She also left specific instructions for the care of her dog. These documents were all completed in her own handwriting and signed by her, and it also appeared that her signature had been witnessed by two adults. She then gave a copy of all but one page of the documents to her appointed executor. After Martha died, these documents were found stuffed into an envelope that she had labelled as her will. It then came to light that the witnesses were not present at the time that Martha signed the documents – in fact, they indicated that the will template was blank when they signed it. Not even Martha had signed it. The executor was not sure what to do. The Wills Estates and Succession Act (“WESA”), in line with centuries of law, requires that a will be signed by a will-maker in the presence of two witnesses who then sign in the presence of the will-maker. Would Martha’s meticulous planning be for nothing? The executor decided to ask a judge if the will could be saved.

If you were the Judge, how would you decide? Continue reading “It’s The Law – Will It Be A Will?”

It’s The Law – Harvey the Horse v. The Unhappy Honda

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

Rhonda Rider had been enjoying an evening ride on her horse, Harvey. It was late July and light was fading from dusk to darkness. Harvey was not normally skittish by nature and the two had travelled this route many times in all levels of light and dark. This time however, as he approached two “blue boxes” placed by the roadside, Harvey began sidestepping. There was a sign and some brush on the off road side of the boxes. Rather than riding him around the boxes on the paved portion of the road, Rhonda decided to dismount and walk Harvey past this area. She checked both ways and there was no traffic on the road. Rhonda had injured her thumb a year before and it was still weak. As Rhonda and Harvey approached the boxes, Harvey whirled quickly away, pulling the reigns from Rhonda’s hands. He bolted down the road and Rhonda ran after him, calling his name.

Suzie Q was driving her Honda with her boyfriend and two children aboard. They were driving along a paved two lane rural road. The moon was up but as they approached an intersection, three trees beside the road made that area almost fully dark. Suzie’s car headlights were on. Suddenly, a riderless horse appeared at full gallop.  As Suzie stopped, the horse collided with her car on the driver’s door, went up over the hood, falling to the ground on the passenger’s side. The horse struggled briefly, got up, and fled into the night. Suzie’s car suffered a damaged door, windshield post, and shattered windshield. Suzie and her boyfriend suffered whiplash injuries.

Harvey injured his hip slightly and suffered some cuts but is alive, well and still being ridden. The Honda was not so lucky.

Suzie sued Rhonda.

If you were the Judge, who would you hold responsible? Continue reading “It’s The Law – Harvey the Horse v. The Unhappy Honda”

It’s The Law – Duty Of A Rescuer

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

The Plaintiff was a bus driver and was going up the mountain towards a ski area. It was snowy and the roads were slippery. The Defendant, through his negligence, lost control of the vehicle and slammed into the bus. As a result of the accident, no one was injured but there was some damage to the vehicles.

The Plaintiff and Defendant exchanged information and while doing so, another Defendant lost control of his vehicle and slammed into the bus. This impact again did not cause any injury.

Police, fire and ambulance arrived on the scene. Traffic was slowed down and warnings were given to motorists. Since the road conditions were bad, and the bus driver’s radio was broken, he decided to walk across the road and have the ambulance attendant call road maintenance, to have them come and sand or salt the road. As he walked along the road, the Plaintiff slipped, fell and injured his thigh and knee. He required surgery and ended up with permanent pain and disability in his leg.

The Plaintiff sued the two Defendants that crashed into his bus, on the grounds that they owed a duty to him as a “rescuer”.

If you were the Judge, who would you hold responsible? Continue reading “It’s The Law – Duty Of A Rescuer”

It’s The Law – Pension Tension

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

Edna and Freddie had lived together in a marriage-like relationship for about five years before deciding to get married. Edna was a hard working teacher with the local school district and made regular contributions to her pension plan provided through her employer. Edna generally paid for the majority of things that the two of them needed. They had a joint account and Freddie had a secondary visa card that was in Edna’s name. Freddie occasionally found work as a handyman, however, any money he made he would keep for himself.

Many of their friends and family thought of Freddie as a freeloader. Regardless, the parties were in love and eventually married. Unfortunately, over the next few years their very different perspectives on savings and financial planning drew them apart. They finally separated after three years of marriage.

At the time of separation, the parties had spent all of their savings and had little to show for their eight years together. The separation was generally amicable except that Freddie wanted a share of Edna’s pension. Edna refused as it was Edna’s hard work (not Freddie’s) that allowed her to contribute to that pension.

Is Freddie the freeloader entitled to some of hard working Edna’s pension?

Based on the Family Law Act, Freddie, despite being a freeloader, is presumptively entitled to half of the contributions Edna made to her pension over the course of their relationship. This includes any contributions made from the date they began living together in the marriage-like relationship to the date of their separation (i.e. eight years). If Edna is serious about wanting to keep her entire pension, and Freddie is agreeable, Freddie’s portion of the pension could be valued by an actuary. That way, Edna could pay out Freddie for his entire interest in her pension.

It’s The Law – Help yourself?

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

Dick and Jane were married later in life, after they had each had children from prior relationships. To keep things clear between them, they entered into a marriage agreement which, among other things, stated that their assets would be kept separate except that both of their pension incomes would be deposited to a joint account that they could both use. Dick trusted Jane to manage these funds for them, and she did all their banking out of this account. As part of his estate plan, Dick signed a power of attorney allowing both his daughter, Ann and his wife, Jane to act separately on his behalf. Dick developed dementia and then also suffered a stroke, so that he ended up in an expensive long term care facility. Ann used the power of attorney to withdraw Dick’s accumulated pension contributions to the joint account, and to direct that Dick’s future pension payments be deposited to a new account under Ann’s control only. Ann was concerned that Dick’s pension income (which was considerably more than Jane’s) would not be sufficient to provide for both Dick’s care costs and Jane’s needs, and further, that allowing Jane to continue to use the joint account funds would force Ann to access Dick’s other investments to pay his care costs. Ann was concerned that Dick’s money be used for his benefit first, and that she preserve his assets as much as possible. Jane objected, as she did not think it fair that Ann acted unilaterally, and contrary to the marriage agreement between her and Dick.

If you were the Judge, how would you decide? Continue reading “It’s The Law – Help yourself?”

It’s The Law – Road Rage

What would you do if you were the Judge? Judges decide the facts based on evidence put before them, and then apply the law. Here is a fact pattern. How would you decide who was at fault? Fact patterns similar to this one are often presented in court and assessed by Judges. Test your judgment!…

The plaintiff was a fit 77 year old man. He was an experienced cyclist who enjoyed going out and riding his bike in the community with his son. He and his son were riding side-by-side in the bike lane when they came upon a large Ford truck that was parked with its mirror extending into the bike lane. Knowing that the plaintiff was hard of hearing, his son made a loud but negative comment about the mirror as they were passing by. The defendant owner of the truck was in his yard at the time and took offense to the comment. He got in his truck and followed the cyclists. Once the defendant had caught up with them, he started shouting at them while driving abreast of the two cyclists. The plaintiff was surprised by the close proximity of the truck and put his hand out onto the truck. After about a 10 second verbal exchange like this, the truck drove off and the plaintiff lost his balance, crashed, and seriously injured his hip.

The plaintiff sued the defendant saying that even though there was no collision, the defendant’s road rage and intimidation caused him to fall off his bike.

The defendant claimed that it was the cyclist’s own fault for losing his balance and falling off the bike or alternatively, the cyclist was partially responsible for his own loss for putting his hand onto the truck, and also for riding side-by side with his son in the bike lane.

If you were the Judge, who would you hold responsible? Continue reading “It’s The Law – Road Rage”