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Considering an Appeal: final versus interlocutory orders
Why does it Matter? Determining whether an order is final or interlocutory is important for litigators considering the proper avenue of appeal. In Ontario, appellate jurisdiction is distributed to two courts. A final order of a Superior Court Justice is appealable to the Court of Appeal as of right, and an interlocutory order is appealable…read more
Retrospective Capacity Assessments
Whether a deceased person had testamentary capacity to execute his or her will is a question often raised in estate litigation and is the subject of many will challenges. A contemporaneous assessment of a testator’s capacity is not always conducted, and sometimes, even if such an assessment was done, it may be flawed or unreliable…read more
Opting Out: Submitting Rights to the Court
Sometimes an individual who has an interest in an estate (i.e. a beneficiary), does not want or need to participate actively in the litigation. The application or action may name the individual as a respondent or defendant but not seek any relief against her. The individual may be named as a party in the litigation…read more
Ontario Welcomes New Tort of Family Violence
Dear Readers, You may remember my previous blog of February 2021, where Ontario welcomed the new tort of internet harassment. The recognition of new common law torts is not an everyday occurrence. Coincidentally, a year later, in February of 2022 Ontario welcomed another new tort: the tort of family violence. After an intensive 11-day trial,…read more
The ETDL and You
Estate litigation cases often deal with multifaceted issues where family members feud about a variety of matters. Will challenges, dependant relief applications and passings of accounts are a few of the types of disputes which result in extensive, protracted and lengthy litigation. In such circumstances, parties often look to appoint an estate trustee during litigation…read more
“Separated” Spouses and Intestacy
The law is constantly evolving and being refined. Most recently, a provision was added to Part II of the Succession Law Reform Act (the “SLRA”), which deals with how an estate is to be distributed when there is no will. In particular, on January 1, 2022, section 43.1 was amended to add that there is…read more
Holographic Wills and Incorporation by Reference
In Re Lacroix Estate, 2021 ONSC 2919, the Ontario Superior Court of Justice considered whether a testator’s handwritten note could incorporate by reference the testator’s unsigned but initialed typewritten Will. Facts On May 19, 2020, during the height of the COVID-19 lockdown, Rebecca Stephanie Lacroix contacted a solicitor, Margaret Opatovsky. Ms. Lacroix advised that she…read more
Can Pets Inherit Million Dollar Trusts?
Recently, a German shepherd named Gunther VI made headlines worldwide by purportedly selling a $31.7 million dollar Miami mansion which used to belong to Madonna. As the story goes, Gunther VI’s great-grandfather, Gunther III, was gifted a multi-million-dollar trust from late owner German countess Karlotta Liebenstein when she passed in 1992. The fund was well…read more
Estate Trustee Compensation
An estate trustee is entitled to compensation for work performed in that capacity on behalf of an estate. Subject to any fee or compensation agreement, the general rule in Ontario is that an estate trustee is entitled to compensation in the amounts of 2.5% of all capital receipts and disbursements, and 2.5% of all revenue…read more
When Death Interrupts a Court Case
No one wants to think that a party to litigation could pass away before the litigation settles or is resolved by the court. But, unfortunately, it does happen. The death of one of the parties in the litigation has an immediate impact on the proceeding. Rule 11.01 of the Rules of Civil Procedure provides, in…read more