Categories
- Capacity
- Costs
- Court Procedure
- Estate Administration
- Estate Litigation
- Capacity Litigation
- Contested Passing of Accounts
- Court Applications to Interpret a Will or Trust
- Court Applications to Remove an Executor / Estate Trustee
- Court Applications to Vary a Trust
- Dependant’s Relief Claims
- Estate Trustee During Litigation
- Guardianship Applications
- Other Claims & Remedies Against Estates
- Solicitor’s Negligence
- Spousal Elections
- Will Challenges
- Estate Mediation
- Estate Planning
- Family Cottage
- Forms of Relief
- In The News
- Joint Assets
- Legal Resources
- Limitation Period
- Mediation
- Power of Attorney
- Trusts
- Uncategorized
- Valuation of Estate Assets
The Revival of Unconscionable Procurement
The administrations of some estates simply do not move forward smoothly. The Elias Gefen estate is one such estate. In Gefen v. Gaertner, 2019 ONSC 6015, Justice Kimmel addressed multiple issues which had stopped the administration from moving forward, ranging from mutual wills to secret trust agreements. Justice Kimmel also applied, for the first time…read more
The LCO Takes on Dispute Resolution and Legal Capacity
Ontario’s current legislative regime defining legal capacity and setting the rules for substitute decision-making and guardianship took shape in the late 1980s and early 1990s. Since then, significant demographic, legal, and social changes rendered the existing system inaccessible to all but a few. In their March 2017 final report on Legal Capacity, Decision-making and Guardianship…read more
Clash of the Limitation Periods
The Limitations Act, 2002, SO 2002, c 24, Sch B, brought order and clarity to limitation periods in Ontario. However, the Limitations Act did not displace all existing limitation periods established by statute. Several carve-outs which are particularly relevant to estates litigators includes the Real Property Limitations Act, RSO 1990, c L.15 and s. 38(3)…read more
Minimum Evidentiary Threshold for Will Challenges
What is the minimum level of evidence to be met before a court allows a will challenge to proceed? The recent Ontario Superior Court of Justice decision in Naismith v. Clarke, 2019 ONSC 5280 (“Naismith”) sets out a useful overview for the circumstances under which a court may allow a will challenge to move forward….read more
The Tax Clearance Certificate, Demystified
As legal representative of an estate, the estate trustee’s obligations are varied. One of their duties is to bring the deceased’s taxes up to date and to file all estate tax returns before the estate is wound up. To exonerate their potential liability to outstanding tax issues pursuant to subsection 159(3)(a) of the Income Tax…read more
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