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Stuart v. Stuart: When Spouses “Separate” Due to Changing Medical Needs
Separation for medical reason affects married spouses whom are forced to live apart due to one’s changing medical needs or deteriorating health. In Stuart v. Stuart, 2019 ONSC 4328, the Ontario Superior Court of Justice was asked to assess how a physical separation due to a spouse’s admission to a long-term care facility impacts the…read more
Testamentary Freedom – A Fundamental Right?
Whether testamentary autonomy is a constitutionally protected right has not been considered by the courts … until now. The rules of testamentary succession (i.e. wills and estates) are governed by provincial law. While each province and territory has its own set of statutes, most have imposed some requirements that the deceased make “adequate provision” for…read more
Sealing One’s Fate: The Sherman Murders, Probate and Perseverance
The Sherman murders remain famously unresolved and still generate headlines and notoriety. But, for better or worse, life moves on and Barry’s and Honey’s respective estates (collectively the “Sherman Estates”), however mundane, need to be probated and administered. In that regard, the Court of Appeal for Ontario (“OCA”) recently released a decision on an appeal…read more
Supreme Court Blesses Henson Trusts
The Supreme Court of Canada has given its blessing to Henson Trusts (fully discretionary trusts set up to not impact the beneficiary’s social assistance benefits) in S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4. I previously blogged about this case when it was before the Court of Appeal. The Metro Vancouver Housing Corporation (the…read more
To Remove or Not to Remove … That is the Question
Estates tell a million stories and the case of Ford v Mazman, 2019 ONSC 542, is just one of them. Mary died on April 3, 2017. Mary’s 2004 Will named her two nieces, Laura and Carleen, as sole beneficiaries. Mary appointed her close friend, Seta, as her estate trustee/executor. Laura had travelled to Ontario from…read more
Limiting the Limitations Act
Estate trustees must be ready at all times to account for their management and administration of an estate. There is no statutory requirement for an estate trustee to formally pass his or her accounts. However, the court may order an estate trustee to do so. As part of the estate accounting application, beneficiaries can file…read more
Milne Estate (Re)visited
The decision of Milne Estate (Re) (“Milne”) caused a stir among the members of the estates bar and solicitors who draft wills, going so far as to illicit an alert from LawPRO. While the Milne decision (which is under appeal) has garnered a great deal of attention and commentary from lawyers (including Justin de Vries’…read more
Not So Fast – Who Controls the Body?
“He knows where the bodies are buried” is a throwaway line from Orson Wells’ cinematic masterpiece, Citizen Kane. That line soon took on a life of its own and entered the cultural vernacular. In the world of estates, a more frequent problem is not finding the bodies but deciding where to bury the bodies. In…read more
SO I DUB THEE INVALID
As Justice Dunphy queried to start Milne Estate (Re), 2018 ONSC 4174, “[i]s a will that grants the executors the discretion to determine what property is subject to the will a valid will?” For the reasons that follow, the answer is no. Background John Douglas Milne (“John”) and Sheila Marlyn Milne (“Sheila”) both passed away…read more
The Final Countdown
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