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Enzo the Mixer
May an attorney for property mix his own funds with that of the incapable person? The short answer is: never. But the consequences for a well-meaning but ill-advised client might not be as dire as we litigators sometimes would expect. In the recent case of Villa v. Villa 2013 ONSC 2202, two brothers, Renzo and Enzo Villa, clashed…read more
Keep the Trains Running: The Importance of a Status Hearing
In a recent decision by the Ontario Court of Appeal, the court turned its attention to a frequently encountered issue in civil litigation: under what circumstances should an action be dismissed for delay by the court following a status hearing? The appellant (plaintiff) appealed a lower court order dismissing the action for delay after a status hearing….read more
Do You Need A Lawyer to Make a Will?
Among the general public, there is a perception that despite being a legal document, creating a will does not require the services of an estate solicitor. There are numerous do-it yourself kits and online services that offer a “fill in the blanks” approach to creating a will. As an estate litigator, I usually see when…read more
Powers of Attorney – Ensuring Access to a Loved One
In our rapidly aging society, powers of attorney for personal care and property are now widespread and their importance is recognized by the general public. A family member or friend can also apply to the court to be appointed guardian of the person or the person’s property if powers of attorney have not been executed. …read more
The Paul Penna Estate: Summary Judgment Appealed
Introduction In an earlier edition of Deadbeat,[1] I wrote a case comment on the decision of Greer J. granting partial summary judgment in the Estate of Paul Penna.[2] The decision was appealed. As recently reported in the Ontario Reports, the Court of Appeal (“C.A.”) dismissed the appeal.[3] What follow is a consideration of the C.A.’s…read more
The Importance of Documenting a Settlement
In the context of estate litigation, mediation, as well as pre-trial conferences, often leads to settlements. The importance of carefully documenting a settlement should not be overlooked. Where required, a Rule 7 motion (court approval of a settlement where a party is under a disability) will have the effect of forcing the parties to document…read more
When to Mediate
I recently attended a client meeting where the issue of mediation was hotly debated. My client expressed reluctance in participating in a process with a party that my client regarded as intransigent and obstinate. My client also thought that proposing mediation would suggest to the other side that our case was weak and we were…read more
Choosing a Mediator
Mediation is a common occurrence in estate litigation. Mediation is also popular in other areas, including family law and even commercial litigation. When choosing a mediator, I look for the following characteristics: Knowledgeable (has to know the law) Experienced at mediating (too many “wannabes”) Litigation savvy (knows the true costs and challenges of litigation) Empathetic…read more
The Doctrine of Abuse of Process
The Supreme Court of Canada had this to say about abuse of process: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way…read more
Assessing Testamentary Capacity
An article was published in the American Journal of Psychiatry in May 2007 and can be found at www.ajp.psychiatryonline.org. Among other things, the article considered the common cognitive screening tests used by the medical profession to assess testamentary capacity. By way of introduction, the article states: Clinicians and legal experts must understand that cognitive tests…read more