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Who to Sue?
Launching a lawsuit and deciding to proceed with litigation is a big decision which requires thought and attention. One of the first matters to consider is who is going to be named as a respondent or defendant to a proceeding. In estates litigation, generally, any individual or entity with a financial interest in an estate…read more
How Do Judges Decide Who Is Lying?
In nearly every lawsuit, opposing parties put forward different versions of events. After listening to the conflicting evidence, the judge has to make a decision about what really happened. The judge’s determination often hinges on an assessment of the reliability and credibility of the witnesses. Deciding whether a witness is reliable and credible is not…read more
Amendment of Pleadings
At the outset, there can be a lot of mystery surrounding estate litigation. Every person involved likely has a different story, and will reveal previously unknown information as matters progress and affidavits are exchanged. As new facts emerge over the course of litigation, a party may discover new claims arising from the same series of…read more
Striking an Affidavit under Rule 25.11
In estate litigation, affidavits are a common and crucial source of evidence. On occasion, one party may take issue with an opposing party’s affidavit evidence. When this happens, the usual course of action is to challenge the admissibility of the affidavit evidence at trial or during the main hearing. However, in some circumstances, it may…read more
Rule 49 Settlement Offers
As lawyers, we try to encourage our clients to take a reasoned and reasonable approach when it comes to pursuing (or not pursuing) ongoing litigation. There are times when there is no choice but to resolve a dispute in court, and there are times when settlement is the best avenue. However, when and on what…read more
Dead or Alive? It May Take Seven Years to Determine
Doing the work of an estate trustee can be demanding and thankless. It usually involves endless paperwork and multiple visits to the bank. However, the job is made much more difficult when it is unclear whether the deceased is, in fact, dead. While it may seem obvious, death is usually confirmed by examining a body….read more
Blended Costs Awards in Estate Litigation
Costs follow the event. This can be translated as the “loser pays” principle which has applied in estate litigation for many years now (since at least the seminal decision in Salter v. Salter Estate, 2009 CanLII 28403 (ON SC), decided by Justice D.M. Brown, as he then was). But in estate litigation there is often…read more
The Consent and Capacity Board
Capacity is often a key component of estate litigation, especially in the context of guardianship and attorneyship disputes. These fights are, for the most part, heard before the Superior Court of Justice. And yet, there is an administrative board with ‘capacity’ built into the name – the Consent and Capacity Board (“CCB”). What is the…read more
When Will a Court “Combine” Separate Proceedings?
Litigation is complicated, and parties sometimes end up getting involved in a multitude of separate, but nevertheless related, proceedings. When this happens, and depending on the circumstances, courts may choose to “link” or “combine” the related proceedings, for the sake of efficiency and overall convenience. Rule 6 of the Rules of Civil Procedure deals with…read more
Dispensing With or Substitution of Personal Service
Personal Service An originating process is the very first document which allows either a plaintiff in an action, or an applicant in an application, to commence legal proceedings. Service of an originating process serves the important function of providing notice of the legal proceeding to those parties involved, and to other persons who could be…read more