The Final Countdown

by: , October 5, 2018

As Justice S. Nakatsuru observed in the Ontario Superior Court of Justice’s decision in Sinclair v. Harris, 2018 ONSC 5718, “[n]o one likes to see a limitation period applied to dismiss a case”. That being said, and as we will soon learn, even if they result in less than satisfactory conclusions, there are good reasons…read more

It’s All About The Benjamin Orders

by: , September 4, 2018

Did William die? If so, when? These were the central issues addressed in Steele v. Smith, 2018 ONSC 4601. There, the Court had to consider whether the estate trustee of William’s sister’s estate should receive a “Benjamin Order”, permitting the estate trustee to distribute the residue of her estate as if William had predeceased her. The…read more

The Open Court Principle Against Protecting the Dignity and Privacy of the Victims of Crime: Quite the Balancing Act

by: , August 27, 2018

The Ontario Superior Court of Justice was recently tasked with balancing two rather weighty legal principles in Toronto Star Newspapers Ltd. v. Sherman Estate, 2018 ONSC 4706. The particular facts of this case also afforded the Court with the opportunity to reflect on the particular nature of estate files more generally. Background Barry Sherman and…read more

Let’s Talk About Court Ordered Capacity Assessments

by: , August 10, 2018

Can one’s capacity be assessed against their will? The recent Ontario Superior Court of Justice decision in Erlich v. Erlich, 2018 ONSC 2911 sets out a useful overview for how and under what circumstances a court may order a person to undergo a capacity assessment, be they willing or otherwise. Background Robert Erlich (“Robert”) is…read more

40oz. to Testamentary Freedom

by: , July 13, 2018

Is the fact that one is a chronic alcoholic enough to deprive them of their testamentary freedom? In Dujardin v. Dujardin, 2018 ONCA 597, the Court of Appeal for Ontario explored this issue when it was tasked with determining the validity of two wills that were executed by a known drunkard. Background Jacques Henry Dujardin…read more

So I Dub Thee Unforgiven

by: , June 26, 2018

Dueling banjos might get more attention ‘round most parts, but dueling promissory notes can be just as exciting. Take the promissory notes that were at issue in the Ontario Superior Court of Justice case Lacasse v. Middleton, 2018 ONSC 3461 (CanLII). In that case, the Court was called upon to determine a winner between two…read more

Ere the Son Rises

by: , June 1, 2018

Ere the Son Rises What is an adult child to do when his or her parent is no longer capable of managing their property? They may, for one, consider applying to the Ontario Superior Court of Justice for the appointment of a Guardian of Property. In Ballinger v. Marshall, 2018 ONSC 3020 (CanLII), a devoted…read more

A RULE OF INCONVENIENCE?

by: , May 23, 2018

A centuries’ old practice gives personal representatives one year after the death of a deceased to wind up the deceased’s estate[1]. This is often called the “executor’s year”. However, in today’s world, it frequently takes more than one year to administer an estate. What happens if a personal representative does not or is not in…read more

The Act of Factum Writing

by: and , May 11, 2018

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

A Touch of Modernity

by: , May 11, 2018

In its costs decision for Campbell v. Evert (previously blogged about here), the Ontario Superior Court of Justice further distilled the rationale and policy reasons informing the “modern approach” to fixing costs in estate litigation. Background As frequent readers of this blog may recall, Dr. Ewert (the “Deceased”) passed away in 2011. She left behind…read more