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Mickey Rooney’s Estate and Shedding Light on Financial Elder Abuse
It is not surprising that Mickey Rooney’s estate may become embroiled in litigation. Mr. Rooney was married nine times; he was survived by a number of children and stepchildren, and was estranged from his current wife at the time of his death. Such full lives often lead to complicated estates. More troubling was that shortly…read more
Salvador Dali, Melting Clocks, Financial Incapacity, and the Removal of an Attorney for Property!
“If the drawing of the clock was akin to Salvador Dali’s paintings, it would not bode well.” Colourful words from Justice Whitten who relied on the court’s parens patriae jurisdiction to remove an attorney for property. The drawing of an ordinary clock is often administered to determine “intellectual acuity”. Salvador Dali’s iconic image of a…read more
Costs and Proportionality: Marcus v. Cochrane 2014 ONCA 207
The Ontario Court of Appeal’s decision in Marcus v. Cochrane (released March 20, 2014) provides a clear statement of the court’s willingness to take a hard look at the proportionality of costs awards, and reduce costs substantially, if necessary. The appeal arose out of a claim that Louise Marcus (“Marcus”) brought against her former lawyer, Carol Ann…read more
Objections to Trustee Accounts Must Be Specific
In reasons delivered last week in Michipicoten First Nation v. Michipicoten First Nation Community Trust, Justice Varpio emphasized that objections to trustee accounts must be specific. If objections are too vague, then the objectors run the risk of having their objections struck. An added risk of delivering vague objections is that the lack of specificity will result…read more
Trust In The Rules Of Civil Procedure To Protect Beneficiaries And Litigants
The Ottawa case of Hawkins v Hawkins Estate provides a well articulated summary of the grounds for the removal of estate trustees. In addition, it provides an interesting discussion regarding disclosure of a solicitor’s file after the death of the testator. The late John Hawkins ran a farming business near Ottawa and owned large parcels of land….read more
Limitation Period for Estate Claims
Cerquiera v University Health Network presents an interesting discussion of s. 38(3) of the Trustee Act, which establishes a 2-year limitation period on any action commenced by or against an estate. The Cerquiera estate sued the University Hospital for negligence in relation to the death of Mr. Cerquiera. Mr. Cerquiera died in 2009; the action…read more
B.C Estate Trustee Ordered to Pay Back Estate Funds
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…read more
Summary Judgment – No Longer for the Brave or Foolhardy
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…read more
Be Careful What You Wish For – You Just Might Waive Solicitor-Client Privilege
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…read more
Limitation Period Precludes Motion to Set Aside Releases
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…read more