An application judge who granted an order dispensing with the consent of a caveat holder to the registration of a condominium declaration and plan based on his finding that any rights under the caveat would not be diminished or adversely affected by the registration did not err, according to the Court of Appeal in 5182353 Manitoba Ltd v BNB Real Estates, 2015 MBCA 105. Given this finding, it was also open to the judge to conclude that it was unreasonable for consent to be withheld, said the court. The caveat referred to an old agreement dedicating three parking spaces to the owner of the building adjacent to the lot beside the proposed condo development. The court found no evidence to support the supposition that the condominium development would affect the rights protected by the caveat.

Despite an earlier decision (affirmed on appeal) declining to charge the estate of a dying woman with payment of ongoing child support, the court found in McAuley v. Genaille, 2015 MBQB 197 that the child was a dependant in need under The Dependants Relief Act and ordered his mother’s estate to advance a monthly amount for his support to the father until the age of 18, conditional on repayment without interest from a bequest (providing it vests at age 21). The court also ordered the estate to pay a further sum of $50,000 to the Public Guardian, to compensate for the fact that an insurer had denied coverage under a policy meant to benefit the child.

A law firm ordered by the court to prepare an affidavit providing a narrative of the information gathered by the lawyer during the course of his retainer to prepare a power of attorney and health care directive “went well beyond the narrative sought” in providing a comprehensive report regarding the execution of the will and the circumstances surrounding it, according to the court in Forest v. Wiebe, 2015 MBQB 186. The court reduced the firm’s fee to $1250 from the $2,913 fee originally charged.

Dauk (Executor of) Estate of Corbett v. Estate of Corbett et al., 2015 MBQB 181, is a cautionary tale on the importance of estate planning for second marriages. The claim involved a dispute between the children from both previous marriages over the proceeds of the sale of the decedents’ jointly owned condominium. The children of the first deceased parent argued that an agreement or course of conduct by the parties severed the joint tenancy and converted it into a tenancy in common before they died. The court found there was a legally enforceable agreement in place to sell the condominium prior to the first death and an express agreement to split the proceeds. This severed the joint tenancy and extinguished the right of survivorship.

Jowett (Litigation guardian of) v. Jowett (Estate of) et al., 2015 MBQB 179, illustrates the balancing act courts must undertake when considering whether and to what extent to expropriate the assets of an estate to fulfil the legal obligations of the testator, under ss. 2 and 8 of The Dependants Relief Act, to support an adult dependant (living independently and receiving social assistance, but unable to support himself). In this case, where the testator made a thoughtful attempt to balance his responsibilities by leaving an RRSP in the dependant’s name, the court was not prepared to accede to the group home coordinator/litigation guardian’s submission that the dependant son should be the only person to be recognized in the deceased's estate. “Simply because a deceased person is fortunate enough to have some assets at the time of his or her death, that should not provide the state with an automatic first charge on those assets,” said the court (para.32). In addition, “(j)ust as it is wrong for a deceased person to leave nothing to an adult disabled child, so too is a philosophy which expropriates all of a testator's assets to the adult disabled child who is also able to take advantage of the social safety net which our society provides. Where it is shown that there are other persons that the testator fairly wishes to recognize in his will, a court is entitled to permit at least some of that recognition to persist, even where the dependant adult child may, without the benefit of social programs, have more need to the money. At the end of the day, it is a question of balance.” (para.38)

The New Home Warranty Act, S.M. 2013, c. 23, has been proclaimed in force effective January 1, 2017. The Act, which received royal assent December 5, 2013, ensures that all new homes built for sale are covered by a warranty against defects in materials, labour and design, and structural defects, and requires home builders and warranty providers to register. The Groundwater and Water Well and Related Amendments Act, S.M. 2012, c. 27, was proclaimed in force effective January 1, 2017 (except ss. 6(d)(i) and (ii), 10(a),12, 14 to 19, 33, 50(2) and (3), and 86(3)(f)). The Act, which received royal assent June 14, 2012, replaces the existing Ground Water and Water Well Act, and makes consequential amendments to The Drinking Water Safety Act, The Planning Act, and The Water Protection Act. Its purpose is to protect groundwater and regulate the construction of wells and aquifers. Further detail can be found in the explanatory note to the bill. The Land Surveyors and Related Amendments Act, S.M. 2013, c. 43, has been proclaimed in force effective March 31, 2016. As noted in the explanatory note to Bill 29, the Act replaces the existing Land Surveyors Act to provide updated legislation for the governance of the land surveying profession. It includes provisions for the registration of members and professional corporations and creates processes for complaints and discipline.

Use of the new electronic pdf fillable Registration Details Application and Service Request forms, available for download from The Property Registry’s website, will become mandatory on January 31, 2016, according to this Registrar General Directive: Approval of new Registration Details Application Form (eRDA) and Service Request Form (eSR). Further information can be found in these notices: New versions of eRDA and eSR are now available! (Dec 21, 2015) New Self-Serve Password Resets (Dec 15, 2015) New eRDA, eService Request, and eReceipt (Dec 7, 2015) New eRDA & eService Request Forms and Barcode Label Update (Nov 23, 2015)

Appeal Court avoids ‘chaos’ by overturning title insurance ruling and Ontario appeal court distinguishes Sattva ruling – these articles reference a recent Ontario Court of Appeal decision concerning coverage under standard form title insurance policies. Financial healthcare for travellers abroad – this Fillmore Riley article lays out the risks snowbirds take when relying on healthcare or power of attorney documents that may not be recognized in other jurisdictions. Planning for the Costs of Expropriation – this TDS article stresses the importance of budgeting for expropriation. Specific Performance: Court Finds Vacant Land “Unique” – this Slaw post discusses a recent Ontario case in which commercial property was found to be “unique” and therefore subject to a claim for specific performance. The New Condo Act Has Been Adopted…. But Is Not in Force Yet - this Gowlings article notes that Ontario’s new condo legislation (Bill 106) received royal assent on December 3, 2015, but will not come into force until a regulatory scheme is in place. A link to a previous article reviewing the changes is also included. 5 Reasons you Should Open an Estate Account, Even if you Don’t Have to – this TDS article points out the perils of using an existing joint account for estate matters.

Mindfulness Based Stress Reduction for Lawyers – Stress is an inevitable part of the practice of law and it can lead to anxiety and behaviours that are counter-productive. Learn how to target the mind-body impact of stress at this February 29, 2016 lunch meeting, to be held in the Law Society classroom.

The MBA’s 2016 Mid-Winter Conference will take place January 21-23, 2016 at the Fairmont Hotel. Continuing professional development sessions of interest to solicitors include: Structuring and Attacking Life/Joint Tenancies, Use of Bare Trusts for Real Estates and Other Property Dealings, Anatomy of a Purchase, Navigating Your Way Through Wills and Estate Administration, and Protecting Clients Making Major Gifts.

Upcoming programs offered by the Winnipeg section of the Society of Trust and Estate Practitioners include Testamentary Trust Tax Changes (Jan 19, 2016); Problems in Structuring Estate Plans (Feb 16, 2016); First Nations (March 15, 2016); and Cross-Border Issues (May 10, 2016). For further details or to register check the website.