Adding Parties And Dependant’s Support

by: , September 17, 2014

Can individuals who may have an obligation to support a person making a dependant’s support claim against an estate be added as parties to the support claim? That was the question before the court in Brash v. Zyma. The short answer? Yes. In 2012, Charles Douglas Brash died. At the time of his death, he had…read more

Constructive Trusts and Tracing Funds

by: , September 8, 2014

The recent Ontario Superior Court case of Moody v Hirsh explores the issue of when a plaintiff is able to trace the money he or she paid to a defendant into the defendant’s own property. The decision demonstrates that the circumstances in which a court will make an order imposing a constructive trust over the defendant’s property…read more

Congratulations – It’s A Girl!

by: , August 21, 2014

A  new study reported on this week found that daughters are significantly more helpful than sons when it comes to taking care of their elderly parents. Referencing data found from surveying 26,000 Americans, it seems that daughters spend on average 12.3 hours a month looking after an elderly parent versus sons who spend on average 5.6 hours…read more

Passing of Accounts: A Math Problem Explained

by: , August 14, 2014

In a recent blog post entitled “Things Lawyers Know,” I laughed out loud when I read #13:  “Lawyers are word, not number people.  If their fee went up 10%, few lawyers would know how much extra they received.” Math often comes into play in an estates litigation practice, particularly in the context of a contested passing of…read more

Correcting a Mistake in a Will – What did the Testator Intend

by: , July 25, 2014

Elizabeth Ann McLaughlin died at the ripe old age of 98.  She was predeceased by her husband.  Together they had six children, including Daniel.  Daniel, as estate trustee, sought to rectify what he characterized as a solicitor’s mistake in his mother’s secondary will. For many years prior to her death, Mrs. McLaughlin had no relationship…read more

Trust Created in Holograph Will Fails

by: , July 17, 2014

A recent Court of Appeal decision from Alberta dealt with the interpretation of a holograph will.  The Court of Appeal upheld a lower court’s decision that the testator intended to create a trust but the trust failed since the objects of the trust were uncertain resulting in an intestacy.  The case serves as a good reminder that…read more

What the Heck is the Deemed Undertaking Rule?

by: , July 9, 2014

One of the best ways for a litigator to learn is to sit in open court watching other litigators suffer through embarrassing court room experiences.  In one of my early days appearing on the Estates List, I had one such experience, and the litigator’s lesson that day centred on the often-misunderstood deemed undertaking rule. On…read more

Testamentary Custody

by: , June 30, 2014

I was recently asked how parents can ensure that the guardian of their choice takes custody of their minor child or children in the event that both parents die simultaneously. In Ontario, parents (or any other person with custody of the child) can nominate someone to assume custody of their child immediately following their death,…read more

You’ve Got…No Spam Anymore! Canada’s Anti-Spam Legislation

by: , June 20, 2014

What is Canada’s Anti-Spam Legislation? – You’ve probably been receiving a lot of emails lately asking for your consent to receive further electronic messages. – These emails arise from new Canadian legislation with the not-so-memorable full title, “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance…read more

Foreign Executors Must Be Careful to Follow the Rules

by: , June 12, 2014

A recent decision of Justice D. M. Brown, Re Estate of Albert Applegath III, provides an overview of the necessary steps a foreign executor must take to have her authority recognized in Ontario. Albert Applegath III died a resident of New Mexico. His will appointed his wife, Clavis, as executor of his estate. After applying…read more