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- Capacity Litigation
- Contested Passing of Accounts
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- Court Applications to Remove an Executor / Estate Trustee
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- Dependant’s Relief Claims
- Estate Trustee During Litigation
- Guardianship Applications
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Guardianship Applications in Writing
There are two procedural avenues when seeking to be appointed or removed as guardian of the person or guardian of property for an allegedly incapable person: the standard procedure which requires a court hearing, and the summary disposition procedure, which is done in writing. The summary disposition procedure is set out under section 77 of…read more
What is an Estate Trustee During Litigation and When Should One Be Appointed?
There are many reasons why an estate may be involved in litigation. The dispute may involve a Will challenge, in which the beneficiaries litigate the validity of a testator’s last Will. The testator’s Will may contain ambiguities and the beneficiaries disagree as to its proper interpretation. The deceased may have left a handwritten note containing…read more
Solicitor-Client Privilege and Beyond
Solicitor-client privilege is a principle entrenched in our legal system. It goes without saying that counsel and client must be able to communicate openly and honestly. But what happens when a client dies? What becomes of the solicitor-client privilege or more specifically, the files of the deceased individual? This issue was raised in the recent…read more
Participant Expert Evidence in Estate Litigation
In some estate litigation the evidence of an expert witness can be a critical piece of evidence. Rule 53.03 of the Rules of Civil Procedure governs expert evidence and expert reports. Section 52 of the Evidence Act addresses reports and evidence of practitioners who are identified as: (a) a member of a College as defined…read more
Assigning an Estate into Bankruptcy
Sometimes, an estate’s debts and liabilities are greater than its assets. When that occurs, an estate trustee should consider assigning the estate into bankruptcy. This is for the protection of the estate trustee, as he or she may otherwise become personally liable for the estate’s unpaid debts and liabilities. If an estate is successfully assigned…read more
The Minimum Evidentiary Threshold to Challenge a Will Is Alive and Well in Ontario
In the recent decision in Giann v. Giannopoulos, 2024 ONCA 928 (CanLII), the Court of Appeal for Ontario upheld the lower court’s decision dismissing a Will challenge application as the evidence failed to meet a standard called the “minimum evidentiary threshold”. This means that in order to be able to move forward with a Will…read more
Discretionary Trusts
The validity and interpretation of wills often lie at the heart of estate litigation cases. However, disputes often centre upon other testamentary documents such as discretionary trusts. The purposes of this blog is to provide a brief overview of the characteristics of a discretionary trust. In a discretionary trust, the trust property is vested in…read more
When will the Court Remove and Replace an Attorney for Property?
When executing a power of attorney for property, a person is free to choose whoever they want to act as their attorney for property when the time comes. However, it can sometimes be the case where a person’s named attorney for property, even their own family, take advantage of their position of power, and begin…read more
Accounting as Attorney for Property or Trustee de son tort
The court can grant leave to compel an attorney for property to pass their accounts under s. 42 of the Substitute Decisions Act, 1992, SO 1992, c. 30 (“SDA”). Whether or not the court will grant leave to compel a passing of accounts will be determined by considering the test set out in Lewis v….read more
Contempt and Custodial Sentences
I previously blogged about orders for contempt and the nuances associated with seeking and obtaining this declaratory relief. This blog will take the discussion a step further and look at what penalties may be imposed upon a contemnor; in particular, the discussion will centre upon the penalty of jail time or a custodial sentence (these…read more