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Constructive Trusts and Tracing Funds
The recent Ontario Superior Court case of Moody v Hirsh explores the issue of when a plaintiff is able to trace the money he or she paid to a defendant into the defendant’s own property. The decision demonstrates that the circumstances in which a court will make an order imposing a constructive trust over the defendant’s property…read more
Congratulations – It’s A Girl!
A new study reported on this week found that daughters are significantly more helpful than sons when it comes to taking care of their elderly parents. Referencing data found from surveying 26,000 Americans, it seems that daughters spend on average 12.3 hours a month looking after an elderly parent versus sons who spend on average 5.6 hours…read more
Passing of Accounts: A Math Problem Explained
In a recent blog post entitled “Things Lawyers Know,” I laughed out loud when I read #13: “Lawyers are word, not number people. If their fee went up 10%, few lawyers would know how much extra they received.” Math often comes into play in an estates litigation practice, particularly in the context of a contested passing of…read more
Correcting a Mistake in a Will – What did the Testator Intend
Elizabeth Ann McLaughlin died at the ripe old age of 98. She was predeceased by her husband. Together they had six children, including Daniel. Daniel, as estate trustee, sought to rectify what he characterized as a solicitor’s mistake in his mother’s secondary will. For many years prior to her death, Mrs. McLaughlin had no relationship…read more
Trust Created in Holograph Will Fails
A recent Court of Appeal decision from Alberta dealt with the interpretation of a holograph will. The Court of Appeal upheld a lower court’s decision that the testator intended to create a trust but the trust failed since the objects of the trust were uncertain resulting in an intestacy. The case serves as a good reminder that…read more
What the Heck is the Deemed Undertaking Rule?
One of the best ways for a litigator to learn is to sit in open court watching other litigators suffer through embarrassing court room experiences. In one of my early days appearing on the Estates List, I had one such experience, and the litigator’s lesson that day centred on the often-misunderstood deemed undertaking rule. On…read more
Testamentary Custody
I was recently asked how parents can ensure that the guardian of their choice takes custody of their minor child or children in the event that both parents die simultaneously. In Ontario, parents (or any other person with custody of the child) can nominate someone to assume custody of their child immediately following their death,…read more
You’ve Got…No Spam Anymore! Canada’s Anti-Spam Legislation
What is Canada’s Anti-Spam Legislation? – You’ve probably been receiving a lot of emails lately asking for your consent to receive further electronic messages. – These emails arise from new Canadian legislation with the not-so-memorable full title, “An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance…read more
Foreign Executors Must Be Careful to Follow the Rules
A recent decision of Justice D. M. Brown, Re Estate of Albert Applegath III, provides an overview of the necessary steps a foreign executor must take to have her authority recognized in Ontario. Albert Applegath III died a resident of New Mexico. His will appointed his wife, Clavis, as executor of his estate. After applying…read more
Bozo Eruption of Secret Tapes: A Litigator’s View
We have been hearing a lot lately about secret audio/video footage – from late night wild rants at the Steak Queen to a pro-life liberal MP chided by a conservative sympathiser into calling Justin Trudeau’s recent stance on abortion a “bozo eruption”. If you google the words “secret taping”, a list of smart phone products appear,…read more