Passing of Accounts: Adjusting An Estate Trustee’s Compensation

by: , January 5, 2015

In a recent passing of accounts case, the court reduced the estate trustee’s compensation for the following reasons: – No compensation should be charged on investment losses listed as capital disbursements; – The costs connected to the sale of real property (real estate commission, property taxes, and legal fees) are not to be included when…read more

Justice David Brown: A Lasting Legacy

by: , December 22, 2014

Congratulations to Justice David Brown who was appointed to the ONCA this week. I am sure that I speak for the Estates Bar when I wish him well in his new role. Justice Brown had a profound impact on the Estates Bar (and beyond) and leaves a lasting legacy. He certainly imposed procedural rigour on the…read more

Can You Give A Cottage Back?

by: , December 3, 2014

It is common to find a provision in a will which allows the estate trustee to distribute assets in specie – meaning instead of selling all the estate assets and dividing the proceeds between the beneficiaries, the estate trustee may transfer the assets directly to the beneficiaries as payment in kind. Giving the estate trustee…read more

Choosing a POA: A Litigator’s Perspective

by: , November 25, 2014

Two things got me thinking about power of attorney litigation.  I listened to a great program on CBC on Sunday, where the guests – an estate litigator in Toronto and an elder law specialist from the west – talked about the trend that many estate litigators have seen lately.  That is, would-be heirs no longer…read more

Alcoholism Alone Not Enough to Negate Testamentary Capacity

by: , November 17, 2014

In daBalinhard, the Saskatchewan Court found that a history of alcoholism, short term memory loss and unusual behavior was not enough to sustain a will challenge. After a forty-year marriage, the testator, John, and his wife, Shirley, separated on August 16, 2011.  Two months after their separation, John executed a new will on October 20,…read more

California Dreaming – The Right to Visit an Elderly Parent

by: , November 7, 2014

I recently came across this news article while reading about the litigation surrounding the final days of Casey Kasem.  The article detailed the recent enactment of new sections to California’s probate code which will come into effect January 1, 2016.  The changes will require “conservators” (a position comparable to Ontario’s court-appointed guardian of the person…read more

Being Removed or Renouncing as Estate Trustee?

by: and , November 4, 2014

Although they sound similar, there are important procedural differences between “removing” an estate trustee and “renouncing” the right to act as an estate trustee. Where the named estate trustee has not yet begun acting in her role as estate trustee (i.e. she has not yet undertaken any work administering the estate), she may “resign” or…read more

Beneficiaries Left Paying for Estate Trustee’s Mortgage

by: and , October 24, 2014

Can an estate trustee’s ability to mortgage an estate property be limited by s. 9 of the Estates Administration Act? This was the question recently addressed by the court in Di Michele v. Di Michele. Section 9 of the Estates Administration Act allows for real property to automatically vest in the beneficiaries of an estate…read more

Limitation Period in Will Challenges

by: , October 10, 2014

Limitation periods generally aim to strike the appropriate balance between an aggrieved party’s right to seek redress and a potential defendant’s right not to remain under the cloud of litigation indefinitely. Limitation periods also address the concern that it would be unfair for a person to defend him or herself against allegations when the passage…read more

Orders for Directions in Estate Litigation

by: , October 7, 2014

Orders for directions can be sought at any time where appropriate in the context of estate litigation. However, parties typically seek such an order at the outset of the litigation. Moreover, it usually becomes apparent to the parties early on that many will or POA challenges, which are commenced by way of notice of application,…read more