Capacity to Grant and Revoke Powers of Attorney

by: , May 7, 2024

The validity of powers of attorney can be challenged on the basis that the grantor was incapable when she signed the power of attorney. The requisite capacity to grant a power of attorney for property is set out in s. 8(1) of the Substitute Decisions Act, 1992, SO 1992, c. 30 (the “SDA”) which provides…read more

The Scope of Cross-Examination on an Interlocutory Motion

by: , March 4, 2024

A deponent or affiant may be cross-examined on their affidavit sworn in support of or in response to a motion.  If a question on cross-examination is not answered, then it will be deemed a refusal.  The examining party may bring a refusals motion to compel answers to the refused questions should they be maintained.  Sometimes…read more

Principles of Will Interpretation

by: , December 22, 2023

In the recent case of Kurt v. Kurt and Sullivan, 2023 ONSC 6599 (CanLII), (“Kurt”), the Court was asked to consider the interpretation of a will. The parties agreed on most of the salient facts, but disagreed with respect to the interpretation of one clause of the deceased’s secondary will. The Court reviewed the legal…read more

Court-ordered Wills and s. 21.1(1) of the SLRA

by: , October 23, 2023

January 2022 brought significant changes to a governing statute in estates law: the Succession Law Reform Act[1]. One such change provides the Court with authority to declare a will valid and fully effective despite its non compliance with legislative requirements for formal execution.[2]  The legislative requirements provide that a will is not valid unless: (a) it…read more

Punitive Damages Against Estate Trustees Can Happen

by: , August 22, 2023

The fiduciary relationship should not be entered into lightly. Examples of fiduciaries in estates and trusts law are estate trustees, attorneys, and guardians. The fiduciary owes legal duties to the beneficiary, for example an estate trustee must account for her management of estate assets. Failure to do so can lead to trouble for the estate…read more

Who Gets Appointed as Estate Trustee During Litigation

by: , July 3, 2023

An Estate Trustee During Litigation (“ETDL”) is an individual appointed by the Court to administer an estate (other than distributing the residue of the estate) while the estate is in litigation. The Court has authority to appoint an ETDL under s. 28 of the Estates Act or rule 75.06(3)(f) of the Rules of Civil Procedure….read more

Blended Costs Awards in Estate Litigation

by: , April 3, 2023

Costs follow the event. This can be translated as the “loser pays” principle which has applied in estate litigation for many years now (since at least the seminal decision in Salter v. Salter Estate, 2009 CanLII 28403 (ON SC), decided by Justice D.M. Brown, as he then was). But in estate litigation there is often…read more

Lost or Destroyed Wills

by: , February 6, 2023

Sometimes original last wills and testaments can become lost or destroyed.  But the original is required for an application for a certificate of appointment of estate trustee, or is otherwise needed to establish the authority of the estate trustee(s) or gifts in the will. Rule 75.02 of the Rules of Civil Procedure, RRO 1990, Reg…read more

What is a Guardian?

by: , November 14, 2022

Attorneys for property and attorneys for personal care are, for the most part, generally understood in our society. That may be because the attorney for property or attorney for personal care is the role that one can grant (the “grantor”) to another through the execution of powers of attorney. The discussion about powers of attorney…read more

Undue Influence in Inter Vivos Transfers

by: , September 19, 2022

Many have heard of undue influence but it is often in the context of a will challenge. That is to say, an argument is made that a testator’s last will and testament is not valid because someone influenced the testator. The influence must be such that the testator was no longer acting with free will:…read more