Legal Papers

You’ve Been Appointed as Attorney for Property or Care – Now What?

by: and , May 16, 2017

It is now all too common that family disputes erupt over issues of capacity and managing parents’ property and personal care.  As society ages and people live longer, more disputes and litigation will inevitably and regrettably arise (and already do).  Clients come to lawyers seeking advice.  Common questions included: What are the duties and responsibilities…read more

Cottage Succession Planning

by: , July 23, 2015

Cottages are treasure-troves of memories and are part of the Canadian psyche.  For many, the cottage is more than just a house by a lake. It is a place filled with memories of fishing and swimming and lying out under the stars on warm summer nights. It is therefore not surprising that most cottage owners…read more

Is the Right to Privacy Lost on Incapacity?

by: , February 6, 2015

Everyone has a fundamental right to privacy. However, once a person becomes incapable of managing their own finances or health care decisions, their lives are inevitably made public to the person(s) stepping in to fill the role of decision-maker. Even for those not appointed a substitute decision-maker, it is common for family members and other…read more

Passing of Accounts – 2013

by: and , November 26, 2014

If a theme were to emerge from the contested passing of accounts cases that were decided in 2013, it would be “protect the innocent”. In some cases, this theme manifested itself in decisions to remove trustees who acted improperly or to surcharge trustees who misappropriated funds. In other cases, judges protected honest (albeit imperfect) fiduciaries…read more

Fraudulent Breach of Trust

by: , November 4, 2014

All is not lost where the trustee of a trust breaches his fiduciary obligation, misappropriates trust assets, and disappears. Where there has been a fraudulent breach of trust, the defrauded beneficiaries are able to pursue strangers to the trust for damages or the return of the trust property. There are three main circumstances in which…read more

Orders for Directions and Pleadings

by: and , October 7, 2014

Will and Power of Attorney (“POA”) challenges are becoming more common. Whether it is the result of the much-vaunted and long-heralded wealth transfer between generations, the aging of society, or an American inspired litigious approach to sorting out life’s inevitable disputes, these court challenges will likely only increase in quantity and complexity. Laying the groundwork…read more

What to do on the Death of a Business Owner

by: and , May 12, 2014

An executor faces unique challenges in administering an estate where the deceased owned a business before death.  The executor should keep the following steps should be kept in mind: • Find the will • Determine the estate assets and liabilities. Understand where the estate ends and the business begins • Determine the scope of the…read more

2012 Recent Guardianship Cases – A Critical Analysis

by: and , May 1, 2014

Guardianship or power of attorney disputes are never pleasant. Unfortunately, such disputes usually involve family members and often drag up long standing, unresolved issues between family members. Litigants can quickly lose perspective, disregard the best interests of the incapable person, and engage in scorched earth litigation. As the population ages and lives longer, such family…read more

Production of Estate Documents in Contested Beneficiary Litigation

by: and , May 1, 2014

When an estate is involved in litigation against its beneficiaries, the production of estate documents is often a highly emotional subject, not to mention legally complex.  The complexity is due to the convergence of multiple forms of disclosure obligations and privileges, some of which are unique to estates litigation.  These include: –  A trustee’s obligation…read more

Duty and Standard of Care of Solicitors Practicing in Estates

by: and , February 19, 2014

A solicitor owes a duty of care to his or her client.  This duty arises in contract (under the terms of the retainer agreement) and as a professional duty imposed on all lawyers to act with skill and competence when serving their client. The appropriate standard of varies with the circumstances and type of legal…read more