Triable Issues In Unclear Land Purchase Agreement: MBCA  

The court dismissed the defendant's appeal of its unsuccessful motion to declare a land purchase agreement null and void and discharge a pending litigation order against its property in Kirchner et al. v. Dielmann Holdings Ltd., 2014 MBCA 21. The defendant argued that the agreement was void for uncertainty since no dates were specified for obtaining approval of the subdivision and closing. The appeal court disagreed, noting that a court can imply a term that a subdivision was required, and that both parties must act in good faith and take all reasonable steps to complete the subdivision and the sale in order to give the purchase agreement business efficacy. As such, there were triable issues concerning whether the agreement was null and void due to uncertainty, whether a term or terms should be implied, what those terms are, whether such terms have been breached and whether the plaintiffs have reasonable claims to the interest in land in question.

Court Defers to Broad Jurisdiction of Director of Residential Tenancies

Discomfort Not Sufficient Grounds to Remove Executor: MBQB

In Kushnier v. Kushnier, 2014 MBQB 45, a former co-executor was unsuccessful in his application to remove his brother as executor of their mother's estate and to require the estate to hold back $190,000 from distribution to cover his claim for house expenses respecting a home he once held in joint tenancy with the mother. The applicant had been removed as co-executor of the estate after filing a statement of claim against his siblings arguing undue influence and seeking to set aside the documents executed by the mother transferring her one half interest in the house to her daughter. He then brought an application claiming that his brother was in a conflict of interest and would not act impartially in his role as executor. The court found that the applicant's own actions had caused the two distinct issues of the estate and the house litigation to become marginally intertwined, and that his complaints about the executor appeared "to be more about tactics or zero sum strategy than substance."    

Contested Liens Should Go To Trial: MBQB

Advance Directive Decision Appealed

There has been much discussion about the recent BCSC decision on health care directives and end of life care in Bentley v. Maplewood Seniors Care Society, 2014 BCSC 165 (see, for example, these articles from Davis LLP, the National Post, and boughtonlaw). The court denied the petition by the family of an advanced Alzheimer's patient to prevent care home staff from giving her nourishment and liquids contrary to the specific instructions expressed in her 1991 statement of wishes. Among other things, the judge found that the patient had expressed her consent to eating and drinking by opening her mouth when prompted by the spoon feeding. The family has appealed the decision (CA-41600).

New Public Trustee Legislation In Effect

Recommended Reading

Aging population a recipe for growth of reverse mortgages - this Law Times article discusses the implications of a predicted rise in reverse mortgages in Canada with the aging of our population, and what that means for the real estate industry.

Lawyers Weekly article explains why that need not signal the death of trust and estate planning in Canada.

Annual Hot Topics in Real Estate

Both sessions of the annual Hot Topics in Real Estate are sold out, but you can get on a wait list for either session (April 28 or May 7) by faxing or mailing the applicable form to the Law Society.

MBA Program on Client Competency

The MBA's Family Law section is presenting a two part program on Client Competency: How to Protect Yourself and Your Client this spring. The first session, concerning practice management tips for those serving elderly or mentally challenged clients, will be held April 25, 2014, from noon to 1:30 p.m. at the Law Society classroom.