Legal Papers
Trustee Indemnification – Recent Developments
It is a fundamental principle that every trustee has the right to be indemnified out of the trust property for all expenses properly incurred in the administration of the trust. The trust instrument itself does not have to guarantee that the trustee will be indemnified; the trustee’s right to be reimbursed for expenses is a…read more
The Herculean Task Of Proving Undue Influence
Undue influence is a well-established and popular ground for challenging a will. However, proving undue influence is notoriously difficult. Although best described as murky, many clients often believe the existence of undue influence is obvious in their situation: their evil stepmother pressured their vulnerable father, their conniving cousin insinuated himself into the heart of their…read more
Managing The Self-Represented Litigant: A Lawyer’s Tool Kit
It is now generally accepted that unrepresented or self-represented litigants are becoming more and more common in the court system. It is widely agreed that unrepresented or self-represented litigants present unique challenges and difficulties – ones that can often be frustrating, time consuming and expensive. I have opted to take a somewhat unorthodox approach in…read more
Contested Passing Of Accounts – Tips, Traps and Pitfalls
Most people feel honoured and/or touched when they learn for the first time (they are rarely asked beforehand) that they are named as an executor or a trustee. However, the honeymoon quickly wears thin when it becomes apparent to the newly appointed executor or trustee how much work is often required. The prospects darken further…read more
Making Sense of Cost Awards in Estate and Guardianship Litigation: A Witch’s Brew?
As noted by one jurist[1], to the extent that it was not clear prior, the Ontario Court of Appeal made it abundantly clear in McDougald Estate v. Gooderham[2] that the modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the court finds that some public policy consideration applies,…read more
Common Privilege Issues Faced by Estates Practitioners
Common Privilege Issues Faced by Estates Practitioners by Justin de Vries and Angela Casey
Brave New World: The Cost of Proportionality in Will Challenges and Guardianship Disputes
Recent amendments to Ontario’s Rules of Civil Procedure (“Rules”) have introduced sweeping changes meant to make the civil justice system more affordable and accessible. The changes are the most significant in a generation; litigation in Ontario will not be the same. Among the changes is the addition of the proportionality rule as an overarching principle…read more
Filing Estate Tax Returns
Under the Income Tax Act, it is the responsibility of the legal representative (such as an estate trustee, or the administrator of the estate if probate is not required) to file all required returns for the deceased on a timely basis, pay all tax owing, and advise the beneficiaries whether the amount they receive from…read more
Representing The Estate Trustee – What To Know And What To Avoid
It has been said that the “worst part” about practicing law is dealing with clients. A rather harsh assessment, but it is likely trite to say that advising a client is never straightforward or easy. No doubt, most lawyers can recount the trials and tribulations of successfully representing their clients (the truly difficult client is…read more
Preserving, Holding, or Otherwise Dealing with Estate Assets during Litigation: What are the Options in Troubled Times?
Will 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, Will Challenges will likely only increase in quantity and complexity. Laying the groundwork for a Will Challenge is obviously…read more