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

The 6ix or the 226? That is the Question

by: , April 20, 2018

Where does one commence a legal proceeding? When can one transfer a proceeding to one’s own hometown? These are simple enough questions, but with answers that may surprise you. The recent Ontario Superior Court of Justice decision of Estate of Byung Sun Im, deceased, 2018 ONSC 2223, set out the answers clearly. Background Byung Sun…read more

But Everything’s Depending on the Way the Wind May Blow [1]

by: , April 2, 2018

Can an estate trustee move to strike a beneficiary’s Notice of Objection to Accounts in the face of their Application to Pass Accounts, based on any of the Limitations Act, 2002, and/or laches and acquiescence? This was the discreet, though important, issue considered by the Ontario Superior Court of Justice in Wall Estate, 2018 ONSC…read more

The Utility (or lack thereof) of Extrinsic Evidence when Interpreting a Will

by: , February 9, 2018

Can one rely on extrinsic evidence (i.e. evidence that relates to a will but is not contained in it) to establish the intentions of a testator? This was a question recently considered by the Ontario Superior Court of Justice in Campbell v. Evert [1]. Background Dr. Ewert had two children, Monica and Peter. Dr. Ewert…read more