What is the Role of Section 3 Counsel?

If an individual whose capacity is in issue in proceedings under the Substitute Decisions Act (“SDA”) does not have counsel,  the court may direct the Public Guardian and Trustee (“PGT”) to arrange legal representation for that person. Pursuant to section 3 of the SDA,  the alleged incapable person is deemed to have capacity to retain…

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What Happens to My Air Miles When I Die?

Many Canadians collect loyalty points with hopes of redeeming the points for various rewards including free air travel, hotels, gas, groceries, and cash. This year with international travel interrupted by COVID-19, many people’s plans to redeem their travel points have been put on hold. Other Canadians have amassed large collections of points over the years…

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What Happens When a Fiduciary Misappropriates Funds?

There is growing concern about the financial exploitation of the elderly by their attorneys for property. The combination of a cognitively impaired grantor (a person who appoints an attorney for property) paired with an attorney who has unfettered access to all of the grantor’s property creates the potential for financial abuse by attorneys. A power…

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The Risks of Being an Estate Trustee

A recent news story highlighted one estate trustee’s regretful experience administering an estate.  Due to lengthy litigation involving the validity of the Will and an unsuccessful result for the estate trustees, the estate trustee was ordered to personally pay over $100,000.00 in legal fees.  While the personal cost order was a result of a unique…

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Warring Trustees: More Isn’t Always Better

Two recent court cases look at the perils of choosing multiple estate trustees and attorneys for property.  Often a testator will choose two or more of their children to act as co-estate trustees.   They may feel that it would offend one of their children to not appoint them as an estate trustee or that…

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What Happens to the Residue of a Trust when a Gift Over Fails?

In a recent Ontario case, the Applicant, a beneficiary of a testamentary trust, sought an order declaring that the gift over of the trust was voided for uncertainty.  He also sought an order that the entire trust be paid out to him immediately.  The estate trustee took the position that the gift over clause was…

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Passing of Accounts: Adjusting An Estate Trustee’s Compensation

In a recent passing of accounts case, the court reduced the estate trustee’s compensation for the following reasons: – No compensation should be charged on investment losses listed as capital disbursements; – The costs connected to the sale of real property (real estate commission, property taxes, and legal fees) are not to be included when…

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Alcoholism Alone Not Enough to Negate Testamentary Capacity

In daBalinhard, the Saskatchewan Court found that a history of alcoholism, short term memory loss and unusual behavior was not enough to sustain a will challenge. After a forty-year marriage, the testator, John, and his wife, Shirley, separated on August 16, 2011.  Two months after their separation, John executed a new will on October 20,…

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