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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
Can a beneficiary under a Will sign as a witness to the same Will?
When executing a Will, one of the requirements is that two different people witness the testator sign the Will and then sign the will themselves as witnesses. This seems fairly straightforward, right? For example, where someone uses a lawyer to assist them with drafting their Will and visits the lawyer’s office to execute the Will,…read more
Is a Formal Capacity Assessment Required Evidence?
When the court appoints a guardian of property or guardian of the person the court must make a finding of incapacity (ss. 25(1) and 55(1) of the Substitute Decisions Act, SO 1992, c 30 (the “SDA”). Often parties will obtain or seek to obtain a formal capacity assessment to provide to the court as evidence…read more
The Standard of Review
When a decision does not go your way, it can be tempting to march straight to the Ontario Court of Appeal to…well, appeal the decision. However, the Ontario Court of Appeal is not an easy second kick at the can. The court will only review a decision if there is a question of fact, law,…read more
Mediation, Arbitration and Med-Arb in Estates Disputes
Litigation can be a costly, time consuming and stressful process for the parties involved. When faced with the prospect of a lengthy trial in backlogged courts, with an uncertain outcome at trial, parties can look for alternative paths to resolving their disputes. In estate disputes, parties may agree, and in some judicial regions of Ontario,…read more
Mareva Injunctions: A Primer
The purpose of this blog is to provide an introduction to Mareva injunctions and the test that has to be met for a Court to grant such an injunction. The term “Mareva injunction” stems from the seminal English case of Mareva Compania Naviera SA v International Bulkcarriers SA, [1975] 2 Lloyd’s Rep 509). Generally, Mareva…read more
Minor’s Funds Paid Into Court
Sometimes, the process of litigation necessitates the payment of funds into court. While there are many reasons that money may be paid into court, in the context of an estate it is most likely to occur where a minor is involved. Because minors cannot hold property themselves, the court may order that funds belonging to…read more
What Happens When Someone is Found in Contempt of Court?
This blog will act as a “part 2” to Joanna Lindenberg’s previous blog post about contempt orders found here, and will serve as a broad overview on punishments for civil contempt. When someone does find themselves in the ill-advised position of being cited or declared as in contempt of Court for disobeying a Court Order…read more