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Conflict of Laws and Guardianship
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”…read more
What Not to Wear: Court Edition
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…read more
When A Custody Battle Turns into Competing Guardianship Applications
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…read more
The General Who Would Be King
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…read more
Proper Lawyer Behaviour on Discovery, in the Age of Rob Ford
Examinations for discovery can afford an excellent opportunity to determine the strength of the opposing party’s position. The discovery process also provides a chance to see a lawyer’s oral advocacy skills in action. But sometimes, a lawyer’s behaviour has the effect of disrupting the discovery process. In Tondera v. Vukadinovic, 2013 ONSC 6888 (CANLii), defence counsel…read more
When Will the Court Appoint an ETDL?
The recent endorsement of Justice Greer in McColl v. McColl illustrates the broad authority of the Court to appoint an Estate Trustee During Litigation (ETDL), and where warranted, to dispense with the requirement that the ETDL post a bond. The deceased was survived by his second wife, ex-wife and son from his first marriage. At the time…read more
Lawyer’s Questionnaire Admitted to Probate as a Will
Courts are sometimes asked to determine if a “testamentary-like” document is a will. In British Columbia, an executor brought an action to prove in solemn form that a questionnaire that the testator (“Ms. Garnett”) filled out and signed before two witnesses shortly before her death was a will that could be submitted for probate. Ms. Garnett was…read more
A Resulting Trust May Arise Before Death
In estate disputes, it is common for parties to try to claw back into the estate bank accounts that were held jointly with the testator before death. The law provides a mechanism to do this – a resulting trust. Briefly, a resulting trust works as follows: any time property is transferred to someone else for…read more
When Will A Court Order a Mental Examination?
In what circumstances will a court order a plaintiff to undergo a mental examination to determine whether she is a party under a legal disability who has to be represented by a litigation guardian? This was one of the issues for the court to determine in the recent Ontario case of 626381 Ontario Limited et al….read more
When Co-Estate Trustees Cannot Agree To Sell The House
While administering an estate, one of the most difficult challenges an estate trustee can face is the situation where a beneficiary continues to reside in a property that is an estate asset when the estate trustee wishes to list the property for sale. When there is disagreement on this issue amongst co-estate trustees, an estate…read more