Estate Trustees are often under pressure to distribute estate funds to beneficiaries as soon as possible. Beneficiaries may express frustration about having to wait for an estate trustee to receive a tax clearance certificate or respond to other administrative issues, such as collecting assets. When probate has not been granted to an estate trustee because…
The recent decision of the Supreme Court of Canada (SCC) in Hryniak heralds a sea change in summary judgment motions in Ontario and will have a profound impact on estate litigation. Many lawyers in Ontario have long groused that the Ontario Court of Appeal (OCA) was overly restrictive in its interpretation of summary judgment rules both before…
The recent Ontario Superior Court decision of Lamoureux v Lamoureux illustrates the care with which clients and counsel must take when submitting evidence to court. Without proper forethought, a party may unintentionally waive solicitor-client privilege. André Lamoureux brought an action against Charles Lamoureux in 2007 (unfortunately, the recent decision does not explain what the originating…
In the usual litigation battle, a release operates as a “shield” in the sense that if a beneficiary sues an estate trustee, the estate trustee can use the release as a defence. In Re: Sheard, the estate trustees were able to use signed releases to preclude them from having to pass their accounts for the period…
In Zerbinati v. Zerbinati 2013 CanLII 86428 (ON SC), the respondents to an application for the determination of the validity of the last will and testament of Valentino Mario Zerbinati (“Valentino”) brought a motion for “non-suit” on the grounds that the formal validity of Valentino’s Will had not been established. The applicants were the testator’s son, Valentino…
Gail Evans died intestate on July 30, 1992. She was survived by her two sons from a first marriage, Richard and Donald, and by her second husband, Carlton. Carlton was the administrator (i.e. estate trustee) of Gail’s estate. The parties agreed Carlton was entitled to a preferential share of $75,000 and one third of the…
Cariello v. Father Michele Perrella 2013 ONSC 7605, a guardianship proceeding heard by Justice Mesbur, is a poignant read, particularly at this time of year when people oft-express a desire to go “home for the holidays”. Born in Italy in 1933, Fr. Perrella became an ordained priest in the Roman Catholic Church and he was “incardinated”…
Effective November 18, 2013, there are some important procedural changes affecting estate, trust, and capacity matters in Toronto. For some time now, the Toronto court has maintained a separate “Estates List” to hear all matters relating to the administration of trusts and estates and substitute decision making. As an estates litigator, I have been an…
In a recent Ontario case, divorced parents each sought sole guardianship of their mentally incapable adult daughter. The parents, who divorced in the 1980s, were unable to work together as joint guardians of their 42 years old mentally incapable daughter (“Isabella”). While both parents, who are now in their 70s, agreed that it would be ideal…
I recently travelled to Washington, DC. I was again reminded of the grandeur of a capital city and how well the Americans celebrate their past, Founding Fathers, and assorted heroes. American myth making can be beguiling. I had the opportunity to tour the Capital Building and George Washington’s ancestral home, Mount Vernon. It was at…