M. Scott Kerwin is a litigation partner in our Vancouver office. He has a broad litigation practice, with specific expertise in trusts, probate, estate and incapacity disputes, Indigenous law, constitutional law and general litigation.
In his estates and trusts litigation practice, Scott counsels his clients in a variety of matters, including:
- probate litigation (disputes concerning the validity of wills and the succession of property)
- claims to rectify and validate wills under the Wills, Estates and Succession Act
- will variation claims under the Wills, Estates and Succession Act
- claims relating to joint bank accounts or other joint assets, or the misuse of a power of attorney
- applications to the court for the interpretation or constructions of wills and trust instruments
- restitution claims against estates
- the appointment of committees under the Patients Property Act
- variations of trusts pursuant to the Trust and Settlement Variation Act
- applications concerning the administration of estates and trusts, including executor’s accounts, and the removal and replacement of executors and trustees
Scott also has significant expertise in Indigenous law, with a primary focus on Indigenous rights and title claims, and the Crown's duty to consult Indigenous groups.
Scott is the regional leader of our Estate Litigation Group and regional co-leader of our Private Client Group.
Prior to being called to the bar, Scott completed a judicial clerkship with the British Columbia Court of Appeal.
Scott provides legal services through a Law Corporation.
Experience - Estates and Trusts
- Provides strategic advice to banks, credit unions and other financial institutions about mental capacity and elder law issues, including the validity and scope of enduring powers of attorney, representation agreements, and committeeship orders.
- Successfully represented a beneficiary in a claim relating to a joint tenancy over real property in Vancouver, and whether the joint tenancy had been severed: Zeligs Estate v. Janes, 2016 BCCA 280, aff'g 2015 BCSC 7, further reasons at 2015 BCSC 525.
- Represented clients in proceedings under section 58 of the WESA relating to whether documents could be validated as “wills” and admitted to probate despite non-compliance with the legislation (Re Cook Estate, 2019 BCSC 417), including the validation of a solicitor’s reporting letter as a will (Re McGavin Estate, 2023 BCSC 819) 2023 BCSC 819 (CanLII) | McGavin Estate (Re) | CanLII
- Successfully represented clients at trial as to whether real property passed to them by right of survivorship: Mac v. Mak, 2016 BCSC 1140, aff’d 2017 BCCA 115.
- Acted as co-counsel for the City of Vancouver in regards to whether City-owned property was being held on trust: Aura Ventures Corp. v. City of Vancouver, 2022 BCSC 508 aff’d 2023 BCCA 209 2023 BCCA 209 (CanLII) | Aura Ventures Corp. v. Vancouver (City) | CanLII
- Successfully represented parties in a contested proceeding to be appointed as committees of their mother under the Patients Property Act: Re Klop, 2021 BCSC 644
- Counsel for the defendants in complex trust litigation concerning the distribution of a discretionary family trust and related corporate reorganization: Pirani v. Pirani, 2022 BCCA 65 rev’g 2020 BCSC 974
- Represented a major Canadian bank and trust company in a case involving whether funds in a Registered Disability Savings Plan could be seized by creditors or by a trustee in bankruptcy: Re Alary, 2016 BCSC 2108.
- Represented beneficiaries in disputes over whether a "pour over clause" in a will was valid: Quinn Estate v. Rydland, 2019 BCCA 91 aff’g Quinn Estate, 2018 BCSC 365.; Waslenchuk Estate, 2020 BCSC 1929
- Represented a beneficiary in regards to the proper payment of income from a trust: Louis Winkler Alter-Ego Trust No. 3 v. Winkler, 2019 BCSC 30
- Successfully defended a claim made against an estate by creditors of a beneficiary and former executor: Braich Estate, 2017 BCSC 1140.
- Acted for an executor and trustee in litigation regarding allegations of testamentary fraud: Nordgren v. Hjukstrӧm Estate, 2019 BCSC 1.
- Represented the executor of a $10-million estate in a petition for the interpretation of a will with issues relating to misdescription of beneficiaries, whether certain language was precatory or binding in nature, and the application of the cy-près doctrine for charitable gifts: Re Eberwein Estate, 2012 BCSC 250.
- Represented executors and trustees in regards to the interpretation and construction of wills and trust instruments: Royal Trust Corporation Of Canada v The Welfare Institution Of The Jews Of Athens, 2022 BCSC 1454 ; Re Thiemer Estate, 2012 BCSC 629
- Acts for executors and trustees in regards to a passing of accounts: Re Reagh Estate, 2021 BCSC 1807 (CanLII)
- Successfully defended clients from being removed as an executor: Re Estate of Ida Moreau, 2019 BCSC 383
- Represented a trust beneficiary to obtain an order that Ontario, not British Columbia, was the proper jurisdiction to determine a dispute about a testamentary trust: Gordon Estate v. Venables,2008 BCSC 501.
- Provides strategic advice to banks, credit unions and other financial institutions about mental capacity and elder law issues, including the validity and scope of enduring powers of attorney, representation agreements, and committeeship orders.
- Successfully represented a beneficiary in a claim relating to a joint tenancy over real property in Vancouver, and whether the joint tenancy had been severed: Zeligs Estate v. Janes, 2016 BCCA 280, aff'g 2015 BCSC 7, further reasons at 2015 BCSC 525.
- Represented clients in proceedings under section 58 of the WESA relating to whether documents could be validated as “wills” and admitted to probate despite non-compliance with the legislation (Re Cook Estate, 2019 BCSC 417), including the validation of a solicitor’s reporting letter as a will (Re McGavin Estate, 2023 BCSC 819) 2023 BCSC 819 (CanLII) | McGavin Estate (Re) | CanLII
- Successfully represented clients at trial as to whether real property passed to them by right of survivorship: Mac v. Mak, 2016 BCSC 1140, aff’d 2017 BCCA 115.
- Acted as co-counsel for the City of Vancouver in regards to whether City-owned property was being held on trust: Aura Ventures Corp. v. City of Vancouver, 2022 BCSC 508 aff’d 2023 BCCA 209 2023 BCCA 209 (CanLII) | Aura Ventures Corp. v. Vancouver (City) | CanLII
- Successfully represented parties in a contested proceeding to be appointed as committees of their mother under the Patients Property Act: Re Klop, 2021 BCSC 644
- Counsel for the defendants in complex trust litigation concerning the distribution of a discretionary family trust and related corporate reorganization: Pirani v. Pirani, 2022 BCCA 65 rev’g 2020 BCSC 974
- Represented a major Canadian bank and trust company in a case involving whether funds in a Registered Disability Savings Plan could be seized by creditors or by a trustee in bankruptcy: Re Alary, 2016 BCSC 2108.
- Represented beneficiaries in disputes over whether a "pour over clause" in a will was valid: Quinn Estate v. Rydland, 2019 BCCA 91 aff’g Quinn Estate, 2018 BCSC 365.; Waslenchuk Estate, 2020 BCSC 1929
- Represented a beneficiary in regards to the proper payment of income from a trust: Louis Winkler Alter-Ego Trust No. 3 v. Winkler, 2019 BCSC 30
- Successfully defended a claim made against an estate by creditors of a beneficiary and former executor: Braich Estate, 2017 BCSC 1140.
- Acted for an executor and trustee in litigation regarding allegations of testamentary fraud: Nordgren v. Hjukstrӧm Estate, 2019 BCSC 1.
- Represented the executor of a $10-million estate in a petition for the interpretation of a will with issues relating to misdescription of beneficiaries, whether certain language was precatory or binding in nature, and the application of the cy-près doctrine for charitable gifts: Re Eberwein Estate, 2012 BCSC 250.
- Represented executors and trustees in regards to the interpretation and construction of wills and trust instruments: Royal Trust Corporation Of Canada v The Welfare Institution Of The Jews Of Athens, 2022 BCSC 1454 ; Re Thiemer Estate, 2012 BCSC 629
- Acts for executors and trustees in regards to a passing of accounts: Re Reagh Estate, 2021 BCSC 1807 (CanLII)
- Successfully defended clients from being removed as an executor: Re Estate of Ida Moreau, 2019 BCSC 383
- Represented a trust beneficiary to obtain an order that Ontario, not British Columbia, was the proper jurisdiction to determine a dispute about a testamentary trust: Gordon Estate v. Venables,2008 BCSC 501.
Indigenous Litigation
- Represents clients in disputes concerning Indigenous rights and title and the Crown's duty to consult Indigenous groups.
- Co-counsel for British Columbia in a judicial review proceeding concerning the approval of a ski resort, with issues relating to the duty to consult Indigenous groups, the Honour of the Crown, sacred Indigenous sites, and freedom of religion under the Charter of Rights and Freedoms: Ktunaxa Nation v. British Columbia, 2015 BCCA 352, aff'g 2014 BCSC 568.
- Represented the City of Vancouver and the Vancouver Park Board in regards to an Aboriginal rights and title claim: Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276.
- Co-counsel for CN Rail in an injunction application relating to the sale of railway corridor lands to local communities for use as a recreational trail: Okanagan Indian Band v. Canadian National Railway Company, 2015 BCSC 1365.
- Co-counsel for a mining company in a judicial review proceeding concerning whether a First Nation had been adequately consulted in regards to a bulk sample permit: West Moberly First Nations v. British Columbia and CKD Mines, 2014 BCSC 924.
- Co-counsel for British Columbia in an action brought by three First Nations for possession of lands near Chilliwack on the basis of Aboriginal title or a pre-Confederation reserve: Chief Joe Hall v. Canada Lands Company Limited, 2014 BCSC 1704.
- Represents clients in disputes concerning Indigenous rights and title and the Crown's duty to consult Indigenous groups.
- Co-counsel for British Columbia in a judicial review proceeding concerning the approval of a ski resort, with issues relating to the duty to consult Indigenous groups, the Honour of the Crown, sacred Indigenous sites, and freedom of religion under the Charter of Rights and Freedoms: Ktunaxa Nation v. British Columbia, 2015 BCCA 352, aff'g 2014 BCSC 568.
- Represented the City of Vancouver and the Vancouver Park Board in regards to an Aboriginal rights and title claim: Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276.
- Co-counsel for CN Rail in an injunction application relating to the sale of railway corridor lands to local communities for use as a recreational trail: Okanagan Indian Band v. Canadian National Railway Company, 2015 BCSC 1365.
- Co-counsel for a mining company in a judicial review proceeding concerning whether a First Nation had been adequately consulted in regards to a bulk sample permit: West Moberly First Nations v. British Columbia and CKD Mines, 2014 BCSC 924.
- Co-counsel for British Columbia in an action brought by three First Nations for possession of lands near Chilliwack on the basis of Aboriginal title or a pre-Confederation reserve: Chief Joe Hall v. Canada Lands Company Limited, 2014 BCSC 1704.
Civil Litigation
- Successfully represented Bauer Hockey Corp. in a three-month trial and at the B.C. Court of Appeal in a complex product liability claim concerning the design and manufacture of a hockey helmet: More v. Bauer Nike Hockey Inc., 2011 BCCA 419, aff'g 2010 BCSC 1395.
- Successfully represented a securities dealer at a summary trial to successfully strike out an enforcement proceeding brought by the BC Securities Commission: British Columbia Securities Commission v. Bapty (2006), 52 BCLR (4th) 372, 2006 BCSC 638.
- Successfully represented British Airways PLC in regards to conspiracy claims by a travel agency made under the Competition Act: Cimaco International Sales Inc. v. British Airways PLC, 2005 BCSC 1338;
- Has resolved many claims at mediation and other forms of alternative dispute resolution.
- Successfully represented Bauer Hockey Corp. in a three-month trial and at the B.C. Court of Appeal in a complex product liability claim concerning the design and manufacture of a hockey helmet: More v. Bauer Nike Hockey Inc., 2011 BCCA 419, aff'g 2010 BCSC 1395.
- Successfully represented a securities dealer at a summary trial to successfully strike out an enforcement proceeding brought by the BC Securities Commission: British Columbia Securities Commission v. Bapty (2006), 52 BCLR (4th) 372, 2006 BCSC 638.
- Successfully represented British Airways PLC in regards to conspiracy claims by a travel agency made under the Competition Act: Cimaco International Sales Inc. v. British Airways PLC, 2005 BCSC 1338;
- Has resolved many claims at mediation and other forms of alternative dispute resolution.
