Scott Kerwin  

Scott Kerwin is a litigation partner in our Vancouver office, Regional Leader of our Estate Litigation Group, Regional Co-Leader of our Family Wealth Counsel Group, and National Co-Leader of our Indigenous Law Group. He practises in the areas of  trusts, estates and incapacity dispute resolution; Indigenous law; constitutional law; and general litigation. 

Scott's trusts and estates litigation practice involves probate (litigation disputes concerning the validity of wills); claims to rectify or vary wills under the Wills, Estates and Succession Act; restitution claims against estates; the appointment of committees under the Patients Property Act; applications concerning the administration of estates and trusts, including the removal and replacement of executors and trustees; variations of trusts pursuant to the Trust and Settlement Variation Act; and applications to the court for the interpretation of wills and trusts.

In the Indigenous law field, Scott's primary focus concerns Indigenous rights and title claims and the Crown's duty to consult Indigenous groups.

Prior to being called to the bar, Scott completed a judicial clerkship with the British Columbia Court of Appeal.

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;
  http://courts.gov.bc.ca/jdb-txt/ca/16/02/2016BCCA0280.htm
  http://courts.gov.bc.ca/jdb-txt/SC/15/00/2015BCSC0007.htm
  http://courts.gov.bc.ca/jdb-txt/SC/15/05/2015BCSC0525.htm
• 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;
  http://courts.gov.bc.ca/jdb-txt/sc/16/11/2016BCSC1140.htm
  https://www.courts.gov.bc.ca/jdb-txt/ca/17/01/2017BCCA0115.htm
• 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 a trustee in bankruptcy:Re Alary, 2016 BCSC 2108
  https://www.courts.gov.bc.ca/jdb-txt/sc/16/21/2016BCSC2108.htm
• Represented a beneficiary in a dispute over whether a "pour over clause" in a will was valid: Quinn Estate, 2018 BCSC 365
  https://www.courts.gov.bc.ca/jdb-txt/sc/18/03/2018BCSC0365.htm
• Successfully defended a claim made against an estate by creditors of a beneficiary and former executor: Braich Estate, 2017 BCSC 1140
  https://www.courts.gov.bc.ca/jdb-txt/sc/17/11/2017BCSC1140.htm
• Represented the executors in a matter concerning whether a bequest of "money" in a will included approximately $15 million in corporate shares and interests: Re Thiemer Estate, 2012 BCSC 629;
  http://www.courts.gov.bc.ca/jdb-txt/SC/12/06/2012BCSC0629.htm
• 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;
  http://www.courts.gov.bc.ca/jdb-txt/SC/12/02/2012BCSC0250.htm
• 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;
  http://www.courts.gov.bc.ca/Jdb-txt/SC/08/05/2008BCSC0501.htm
• Represented an executor and beneficiary of an estate to recover trust property that had been mistakenly distributed to the wrong persons: Abram Estate v. Shankoff, 2007 BCSC 1368;
  http://www.courts.gov.bc.ca/jdb-txt/sc/07/13/2007bcsc1368.htm

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;
  http://courts.gov.bc.ca/jdb-txt/CA/15/03/2015BCCA0352.htm
  http://www.courts.gov.bc.ca/jdb-txt/SC/14/05/2014BCSC0568.htm
• 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
  https://www.courts.gov.bc.ca/jdb-txt/ca/18/02/2018BCCA0276cor1.htm
• 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;
  http://courts.gov.bc.ca/jdb-txt/SC/15/13/2015BCSC1365.htm
• 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;
  http://www.courts.gov.bc.ca/jdb-txt/SC/14/09/2014BCSC0924.htm
• Co-counsel for British Columbia in an action brought by three First Nations for possession of lands near Chilliwack on the basis of Indigenous title or a pre-Confederation reserve: Chief Joe Hall v. Canada Lands Company Limited, 2014 BCSC 1704;
  http://courts.gov.bc.ca/jdb-txt/SC/14/23/2014BCSC2361.htm

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;
  http://www.courts.gov.bc.ca/jdb-txt/CA/11/04/2011BCCA0419.htm
  http://www.courts.gov.bc.ca/jdb-txt/SC/10/13/2010BCSC1395.htm
• 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;
  http://www.courts.gov.bc.ca/jdb-txt/sc/06/06/2006bcsc0638.htm
• Has resolved many claims at mediation and other forms of alternative dispute resolution.
  

• Speaker/Co-Author, "Avoiding the Pitfalls, Part II: Drafting to Avoid Trust Litigation," The Changing Landscape of Trusts, PBLI, June 2018.
• Speaker, "It's a New Dawn, It's a New Day – WESA- The Court's Curative Power," Canadian Bar Association webinar, 24 May 2018.
• Speaker/Author, "Commencing an Estate Litigation Claim: Pleadings, Proof in Solemn Form, and the 'Culture Shift' in Probate Litigation," Estate Litigation Basics, 2018, CLE BC, April 2018.
• Speaker/Co-Author, "Avoiding the Pitfalls: Drafting Around Commonly Litigated Issues," Estate Planning Done Right, PBLI, January 2018.
• Speaker, "The Duty to Consult Indigenous Groups: An Update," presentation to BLG Mining Group, September 2017.
• Speaker, "What Every Fiduciary Should Know about Dependant's Relief: The WESA and Wills Variation in British Columbia," client seminar, January 2017.
• Speaker, "Aboriginal Claims and Limitation Defences," BLG U, Aboriginal Law Seminar, September 2016.
• Speaker, "Powers of Attorney, Mental Incapacity and Joint Accounts," client seminar, June 2016.
• Speaker/Author, "Estate Litigation and Legal Advice Privilege," Estate Litigation Basics, 2016, CLE BC, February 2016.
• Speaker, "Aboriginal Sacred Sites and Religious Freedom: A Discussion of Ktunaxa Nation v. British Columbia," Presentation to CBABC Aboriginal – Vancouver Section, November 2015.
• Speaker, "Update on Probate and Incapacity Legislation in British Columbia: Implications for Residents of Washington State," STEP Seattle, November 2015.
• Contributor, "ADR and Trusts: An International Guide to Arbitration and Mediation of Trust Disputes," Spiramus Press Ltd., 2015.
• Speaker, "The Scope and Limits of Section 58 of the Wills, Estates and Succession Act," CBABC Wills & Trusts– Vancouver Section, April 2015.
• Speaker/Co-Author, "Challenging the Estate Plan: When Good Planning is Not Enough," Estate Litigation – 2014 Update, CLE BC, October 2014.
• Author, "Validation and Rectification of Defective Wills Under the Wills, Estates and Succession Act: The Tranquil Revolution in Probate Law Comes to British Columbia," Estates, Trusts and Pensions Quarterly, Volume 33, May 2014.
• Speaker, "Corporate Counsel and the Law of Privilege: A Primer," BLG U, May 2014.
• Speaker, "Passings of Accounts and the New Probate Rules," WESA and the New Rules, CLE BC, November 2013.
• Panelist, "Powers of Attorney – Litigation," Senior Estates & Trusts Practitioners' Forum, Langdon Hall, October 2013.
• Speaker, "'This Water Question': An Overview of Claims to Aboriginal Water Rights in British Columbia," BLG U, Aboriginal Law Seminar, April 2013.
• Speaker, "Powers of Attorney and Mental Incapacity," BLG - Corporate Security Roundtable, November 2012.
• Speaker/Author, "The Last Word: Passing of Accounts in Contentious Estates," Estate Litigation Basics, 2012 CLE, November 2012.
• Speaker/Author, "Pleadings, Remand, and Voyages on the Flying Dutchman: Aboriginal Caselaw Update," Aboriginal Law Conference, 2012, CLE BC, June 2012.
• Speaker/Author, "Settlement of Estate Litigation," Estate Litigation – 2011 Update, CLE BC, November 2011.
• Speaker/Author, "Probate Actions," Estate Litigation Basics, CLE BC, October 2010.
• Author, "Stare Decisis in the BC Supreme Court:  Revisiting Hansard Spruce Mills," The Advocate, Volume 62, July 2004.
• Contributing Author, BLG's Aboriginal Legal Issues e-Newsletter, a publication providing case summaries and updates on Indigenous legal issues in Canada and other common law jurisdictions, 2000-present.
• Author, three chapters in the British Columbia Probate and Estate Administration Practice Manual (Chapters 15, 16 and 17, concerning executors' accounts, compensation claims by executors and administrators, and solicitors' fees), The Continuing Legal Education of BC (CLE BC), 2005-present.

• ​Recognized in the 2019 (and since 2014) editions of The Best Lawyers in Canada (Trusts and Estates).