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Posts By: Gillian Fournie
44 ResultsClash of the Limitation Periods
The Limitations Act, 2002, SO 2002, c 24, Sch B, brought order and clarity to limitation periods in Ontario. However, the Limitations Act did not displace all existing limitation periods established by statute. Several carve-outs which are particularly relevant to estates litigators includes the Real Property Limitations Act, RSO 1990, c L.15 and s. 38(3)…read more
Testamentary Freedom – A Fundamental Right?
Whether testamentary autonomy is a constitutionally protected right has not been considered by the courts … until now. The rules of testamentary succession (i.e. wills and estates) are governed by provincial law. While each province and territory has its own set of statutes, most have imposed some requirements that the deceased make “adequate provision” for…read more
The Act of Factum Writing
The importance of a factum in litigation cannot be overstated. A factum is a party’s written submissions to the court. The factum summarize the facts of the case, the issues in dispute, and the law being relied upon (with the addition of “overview” and “relief sought” sections at the beginning and end of the factum,…read more
The PGT and the Case of the Missing Estate Trustee
While a will offers a way to ensure your assets pass to your chosen beneficiaries on death, not everyone dies with a will. When this happens, the Succession Law Reform Act (Part II) sets out who are the beneficiaries of the estate, while the Estates Act (section 29) ranks in order of priority who may…read more
Happy 65th Birthday from the Canadian Government
Canadians can rejoice at turning 65 – you are now eligible for the government benefits offered to seniors. In order to spend more time eating cake and less time searching for the benefits that apply to you, provincial and federal benefits are listed in one convenient website. The list briefly summarizes the different benefits available,…read more
Insolvent and Bankrupt Estates
Estate trustees and beneficiaries often focus on the positive – the many and varied assets of an estate which will soon be distributed to the beneficiaries. It is only after the estate administration is underway that the full financial picture emerges – an estate that appeared flush may actually have more debts than there are…read more
Mandatory Mediation – A Binding Success
In 1999, a pilot program was implemented in Toronto requiring mandatory mediation for all estates, trusts, and substitute decisions matters. In 2002, mandatory mediation was expanded to Windsor and Ottawa. The pilot program was considered a success and mandatory mediation has been enshrined in rule 75.1 of the Rules of Civil Procedure (see the Ministry…read more
Marriage Contracts and Nursing Care
Caring for your aging spouse may be difficult and stressful without a support network. When the “healthy” spouse is too old and fragile to provide care, additional support or alternate accommodations for the ailing spouse must be found. Unfortunately, when one 80-year old wife made it clear to her children and step-children that she was…read more
Gifting Your House to Your Caregiver
It is not uncommon for an aging parent to want to give an extra benefit to the child who is looking after her. However, where this means favouring one child over another, litigation is often not far behind. Such was the case of Donis v Georgopoulous. In the well-written reasons of Justice Firestone, the court…read more
Waiver of Solicitor-Client Privilege
It is a well-recognized principle of law that communications between a client and his lawyer are privileged and remain private and confidential even after death. Only the client can choose to waive privilege and allow the communications to become public. Waiver can be either explicit or implicit. One well known example of implicit waiver of…read more