Replacing an Estate Trustee

by: , March 19, 2024

Overview In some cases, an estate trustee (“ET”) has been appointed, but needs to be replaced before the estate administration is complete. This can occur for a variety of reasons: the ET becomes unable or unwilling to continue acting for the estate,  the ET is removed by the Court in the course of litigation, or…read more

Can Estate Trustees Keep a Holdbacks for Legal Fees?

by: , March 12, 2024

Right to Indemnification of Legal Fees Section 23.1 of the Trustee Act, RSO 1990, c T.23 confirms that estate trustees are entitled to be indemnified for the legitimate costs of carrying out their duties. In other words, estate trustees should not have bear the costs of the estate administration. This includes an estate trustee’s legal…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

Being a Spouse Matters: Two Examples

by: , February 26, 2024

Ontario law recognizes two forms of spousal relationships: marriage and common law partnerships. While certain statutes may modify or create their own definition of common law partnership, the definitions found at s.1 and s. 29 of the Family Law Act, RSO 1990, c F.3 are the standard. As a reminder, in Ontario, a common law…read more

Cost Awards: A Breakdown

by: , February 13, 2024

One of the most common concerns voiced by litigants is how they can recover their costs of the litigation. In Ontario, you do not need to bring a separate claim against the opposing party to recover your legal fees. Rather, at the end of the litigation (or at the end of a particular step of…read more

Persons under Disability and Settlement

by: , January 29, 2024

Rule 1.03 of the Ontario Rules of Civil Procedure defines a person under a disability as being a minor or someone mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992, S.O. 1992, c.30, in respect of an issue in the proceeding. In estate litigation, the rights of minor…read more

Dealing with the Debts and Liabilities of an Estate and Abatement

by: , January 22, 2024

It can often be the case that there are debts and liabilities attached to a deceased’s estate. This can include things such as taxes and debts in the form of loans, credit cards and funeral expenses, among others. One of the most important duties of an estate trustee is ensuring that all of the estate…read more

Seeking Court Approval of a Settlement in Writing

by: , January 16, 2024

Minors and incapable persons are protected in a variety of ways in Ontario’s court system. One form of protection comes through Rule 7 of Ontario’s Rules of Civil Procedure (the “Rules”). In particular, subrule 7.08(1) provides: “No settlement of a claim made by or against a person under disability, whether or not a proceeding has…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

Interim distributions

by: , November 14, 2023

As many people know, in addition to being expensive, litigation is often slow-moving and lengthy. In an estate with significant or contested issues, litigation can continue for several years. Even in estates without significant disputes, applying for a certificate of appointment and administering an estate can take many months. Further, once a certificate of appointment…read more