Mussio Goodman Obtains Another Successful Result in Court

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Mussio Goodman is pleased to announce our success in the case of Ciarniello v. James, 2016 BCSC 1699. The case involved a wills variation claim by the Plaintiff, who was the second wife of a Vancouver dentist and businessman. 

The Plaintiff sued her husband’s estate, claiming that he did not adequately provide for her in his will. The deceased had five children, two with the Plaintiff and three from a previous marriage. The will split the estate equally between his five children but left out the Plaintiff.

In this case, Wesley Mussio and Anthony Eden of Mussio Goodman represented the Defendants, the three children from the first family.

It should be noted that this was a British Columbia case, and British Columbia Wills and Estate law is very unique when compared to other jurisdictions, as it features legislation which allows adult children or spouses to apply to the Court to vary the will of a deceased person. 

A Court will overturn a will of a deceased person and vary it with terms it deems to be “just, adequate, or equitable”, if a variety of criteria are met. However, the criteria which warrants variation of a will is routinely a point of contention between the parties, especially when there are millions of dollars at stake.  

The BC wills variation regime often pits family members against each other in lengthy and contested litigation. A particularly common family dynamic in BC wills variation claims involve blended families. Where the deceased has multiple children with different spouses, there is typically an increased possibility for animosity between family members. This age-old problem can lead to some fairly complex litigation. The lawyers at Mussio Goodman are well versed in the legal and practical aspects of such situations and the impact on Wills and Estate law in British Columbia.

The first family disagreed that the deceased’s will ought to be varied in the Plaintiff’s favour, mainly because their father had transferred significant assets to the Plaintiff before his death. Furthermore, they argued that their father relied on complicated tax planning reasons for leaving the Plaintiff out of his will.  

Mr. Justice Sigurdson heard arguments from all the parties over four days of trial. The evidence revealed that the estate was over $11M in total, and that the Plaintiff had been transferred significant assets prior to the death of the Deceased. In spite of this, the Plaintiff argued that she should have received half of the marital assets on the death of the Deceased, as would have been required on a divorce. Furthermore, the Plaintiff argued that she had not been maintained by the deceased to continue a standard of living to which she had grown accustomed.

On the other hand, we argued on behalf of our clients that the court should give due consideration to the considerable assets already transferred to the Plaintiff, and the taxes paid by the estate for which the Plaintiff was not responsible.

Of importance, it was revealed through the course of litigation that a company transferred to the Plaintiff before the death of the deceased owed debts of close to $1.5M dollars to the deceased’s estate. This key evidence was uncovered through the discovery process of the litigation by the efforts of the Mussio Goodman team. 

After reviewing all the evidence, Mr. Justice Sigurdson ordered that the will be varied so that the Plaintiff is entitled to 25% of the Estate. In making his decision, Mr. Justice Sigurdson placed a great deal of weight on the fact that without a variation of the will, the Plaintiff would be unable to re-pay the debt to the Estate. So while the Plaintiff will receive an increased share from the estate, the practical consequence is that the she must use her increased share to satisfy the debt owing to the estate. 

This case demonstrates how complicated BC Wills and Estate litigation can be. There are often significant investigations in the course of litigation as well as complicated practical issues to take into account, such as tax planning consequences. Litigation can be a very risky endeavour and there are very rarely “slam dunk” cases. At Mussio Goodman, we provide our BC Wills and Estate litigation clients with the experience, knowledge, and expertise to deal with any situation that may arise throughout the course of a lawsuit.

Court Rejects Insurer’s Application to Conduct Prolonged Examination of Our Client

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We are pleased to announce our success in opposing the insurance company’s application to subject our client to further questioning by their defence lawyer.

The insurer sought a court order to increase the permitted time to question our client under oath, which is known as an “examination for discovery”. 

Under the B.C. Rules of Court, in this case, an examination of discovery cannot last longer than two hours unless all parties consent or the Court orders it. We argued that two hours was more than sufficient to examine our client, who was a passenger in a vehicle that was involved in a hit and run collision.

In spite of our client’s medical records and family doctor’s opinion indicating no significant pre-existing health issues, the insurer sought to question our client about, among other issues, a concussion that she sustained as a child.

The Court dismissed the insurer’s application on the basis that if the defence lawyer were succinct and efficient with their questioning, then the two hours would be more than adequate.  

The Court further agreed with our submissions that a concussion that occurred more than 20 years ago was irrelevant and in no way warranted an additional examination.

This decision underscores the importance of consulting a lawyer to ensure the insurer is being held in check, and that your rights and privacy are protected over the course of your injury claim. 

Mussio Goodman Successful at Trial in Overturning Will For Disinherited Clients

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We are pleased to announce that reasons for judgement were just released in our case Sharma v. Sharma Estate, 2016 BCSC 1397. The case centered on the Estate our clients’ mother, and her Will that disinherited three children in favour of one son.

In the Will, the defendant stood to inherit the entire Estate. The Estate was valued at upwards of $2 million and consisted of real estate in Canada as well as Fiji and other sizeable investments.

At trial, Wes Mussio argued that the Will of the deceased did not make a morally adequate provision for our disinherited clients (Rani and Ranjan). We argued that our clients had not been given any significant assets from their mother during their lifetime, while the defendant brother (Victor) was in receipt of financial support from his mother in the form of rent-free accommodation, a monthly stipend, and payment of various expenses for the duration of his entire adult life when he was not serving time in prison for attempted murder and other serious criminal activities.

Madam Justice Griffin agreed and accordingly varied the Will ordering 34% of the residue of the Estate to the Deceased’s daughter and 33% to each son.

[430] Judging Victor by contemporary standards would mean that he should not necessarily be disinherited simply because of his criminal activity, as he should be given a chance at rehabilitation. Similarly, the fact that there was some distance between Rani, Ranjan and the Testatrix later in her life can be understood by the circumstances which led to that distance, for which Rani and Ranjan ought not to be unduly criticized.

 [431] Viewed objectively in light of current societal norms, when I compare and contrast the circumstances of Rani, Ranjan and Victor, I conclude that each sibling is morally deserving of a share of the Testatrix’s estate and that a judicious parent would share her estate amongst them.

This case underscores the legal and moral constraints that can affect the binding nature of one’s Last Will and Testament. If you have been disinherited and suspect that the decision was made by way of undue influence, mental incapacity, or believe there are moral reasons why you should still be entitled to a portion of an estate, contact us to review your rights.


Mussio Goodman Prevents Insurance Company Doctor Examination of Our Client 

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We are pleased to announce our recent success in defending our client’s interests by preventing an independent medical examination (IME) with a neurologist chosen by the insurance company.

IMEs are often obtained by both the claimant and the insurer over the course of a claim in order to produce medical-legal opinions that support each side’s position with respect to the cause and extent of the claimant’s injuries. 

The insurer is therefore entitled to compel a claimant to attend an IME, but such an entitlement must be exercised reasonably and fairly. 

In our client’s case, after colliding with a vehicle while riding her bike, she suffered various injuries including a concussion, vestibular dysfunction and other soft-tissue injuries. 

Over the course of the claim, our client consented to two IMEs selected by the insurer, one with an ENT doctor, and the other a psychiatrist.

However, we drew the line at the insurer’s  third request that our client attend an additional IME with a neurologist. In response, the insurer applied for a court order that would have compelled our client to comply. 

We argued that a third IME is superfluous and would put the parties on unequal footing, and that the insurer had yet to produce the reports from their two previous IMEs, and is therefore ‘doctor shopping’ until they find an opinion they liked. We further argued that without the benefit of seeing the two previous reports, we cannot be sure that the previous doctors already addressed the very issues that a neurologist would. 

 The Court ultimately agreed with our submissions and dismissed the insurer’s application on the basis that what they were asking for was an improper “shotgun approach”.  

Court Denies Insurer’s Application To Obtain Our Client’s Medical Records

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Advancing an injury claim requires a claimant to disclose relevant medical and employment records. However, the insurance company should not be entitled to a “fishing expedition” by gaining access to a claimant’s entire medical and employment history with the hopes of finding something they can later argue is relevant. As a firm representing the interests of injured plaintiffs, we strive to ensure that the insurer is held to this standard.

In our recent case Iyer v. Gill, the insurer applied to the Court for an order compelling our client to produce medical and WCB records dating back 14 years prior to the accident.

Mussio Goodman argued that such a broad disclosure was not relevant to the claim and unfairly invaded the privacy of our client.  The Court ruled in our favour, finding that such disclosure was disproportionate and overbroad. The Court found that the documents we had already disclosed in support of our client’s injury claim were sufficient, and therefore dismissed the insurer’s application.

This ruling underscores the benefit of hiring a lawyer to protect both your rights and your privacy over the course of your injury claim.

Jury Awards Our Client $216,500 After Insurance Company Offered Zero Dollars Before Trial

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Mussio Goodman is pleased to announce that, after a two week trial conducted by our lawyers, the jury awarded our client $216,500 for pain and suffering, lost wages, and medical expenses.

This jury award comes after the insurer refused to settle for any compensation whatsoever for the injuries that our client, Dainya Watson, sustained in an accident on January 11 2013. On that day, Ms. Watson was traveling on horseback along the shoulder of a road in Langley when she was struck by a driver that refused to stop after the collision. The impact caused both her and the horse to fall, causing injury to both.

The insurer’s simple argument was that, in spite of all the evidence to the contrary, our client should not be believed, and that an accident never even happened. Meanwhile, our client continues to receive multiple injections along her spine to help alleviate her pain.

Thankfully, in Ms. Watson’s case, the jury rejected the insurer’s assertion that our client should not be trusted, and compensated her for what she deserved.