Mussio Goodman is pleased to announce our success with the judgment of Terezakis v. Ekins, 2018 BCSC 249. This application involved the plaintiff applying for leave under s.151 of the Wills, Estates and Succession Act, SBC 2009 c. 13. to secure standing to bring an action on behalf of the Estate of Aikaterini Terezakis, the deceased.

This decision is the first successful case in British Columbia where a beneficiary or intestate successor has been granted leave, based on necessity alone, to bring an action on behalf of an estate to sue for a resulting trust over a property that was transfered by the deceased before death.

The Terezaki v. Ekins Case

Mussio Goodman successfully argued in Terezakis that the plaintiff had fulfilled the requisite criterion to obtain standing. The criterion being:

1. the beneficiary made reasonable efforts to cause the personal representative to commence or defend the proceeding;
2. the beneficiary gave notice of the application to the personal representatives and any other beneficiaries;
3. the beneficiary is acting in good faith; and
4. it is necessary or expedient for the protection of the estate or the interest of the beneficiary or intestate successor for the proceeding to be brought or defended.

The Honorable Madam Justice Morellato opined at paragraph 31 in Terezakis that the court can grant leave under s. 151 on the criterion of necessity alone:

“[31]        Ms. Ekins is in a difficult position.  She is the executor of the Estate, a beneficiary under the Will and also the owner in fee simple of the Richmond Property which Mr. T. Terezakis claims she holds in trust for the Estate, an allegation which Ms. Ekins vigorously disputes.  Ms. Ekins deposed in her affidavit sworn January 31, 2017 that, “in her capacity as Executor” of the Estate, she intend to take a neutral position” in the Action.  By taking a “neutral position”, Ms. Ekins is clearly unwilling to prosecute the claims articulated by Mr. T. Terezakis, on behalf of the Estate,  since a key issue in this suit would challenge her ownership interest in the Richmond Property.  Further, because of her asserted interest in the Richmond Property, she is in a conflict of interest, making her effectively “unable to proceed” on behalf of the estate.  In this light, given that I have found the other pre-conditions of s. 151 have been satisfied, I conclude that I may exercise my discretion to grant leave under s. 151 on the criterion of “necessity” alone.”

This precedent setting judgment shows that obtaining legal counsel with experience, knowledge, and expertise in estate litigation can get you results previously unheard of. At Mussio Goodman, we provide our Wills and Estates clients with the requisite experience, knowledge, and expertise.

Our recent success in the Supreme Court of British Columbia against ICBC 

Mussio Goodman is pleased to announce our recent success in the Supreme Court of British Columbia, in which we defended our client’s interests by preventing a medical assessment (IME) by an orthopedic surgeon chosen by ICBC.

IMEs are often obtained by both the claimant and ICBC during the litigation process, the purpose of which is to have independent doctors provide the parties, and ultimately the Court, with an impartial expert opinion on the claimant’s injuries. The law is clear with regards to IMEs; the Plaintiff must attend these appointments so long as they are reasonable and fair.

In this recent case, our client was in a motor vehicle accident where she suffered a number of injuries including a concussion, traumatic brain injury, and a number of soft tissue injuries. At this point of the claim, our client had already consented to an IME with a neurologist selected by ICBC.

Interestingly, ICBC instructed the neurologist to provide a fulsome report of our client’s injuries, not restricting him to opinions of a neurological nature. The ICBC doctor commented extensively on our client’s soft tissue injuries, providing views that went well beyond his expertise as a neurologist. We stood firm in our position that a subsequent IME was inappropriate as ICBC had already received a fulsome report of our client’s injuries. As a result, ICBC applied for a court order to compel our client to attend.

We argued that the second IME was unnecessary to put the parties on an equal playing field. We further argued that ICBC was simply looking to bolster the weaknesses of the previous report from the neurologist. They were in essence ‘doctor shopping’ for a more favourable opinion.

Madam Justice MacNaughton of the Supreme Court of British Columbia agreed with our submissions and dismissed ICBC’s application with costs.