When Siblings Fight – Removing a co-attorney

by: , October 17, 2022

Anybody with a sibling can tell you. Nobody gets under your skin quite like a brother or a sister can. When it comes to care in their old age, many parents will name multiple children as their attorneys for property or personal care. The sentiment is understandable. Parents may not want certain children to feel…read more

Undue Influence in Inter Vivos Transfers

by: , September 19, 2022

Many have heard of undue influence but it is often in the context of a will challenge. That is to say, an argument is made that a testator’s last will and testament is not valid because someone influenced the testator. The influence must be such that the testator was no longer acting with free will:…read more

Retrospective Capacity Assessments

by: , June 20, 2022

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

Involving the PGT in Guardianship and Estate Matters

by: , May 4, 2021

Guardianship and estate disputes often present complex family dynamics touching upon a myriad of issues. Where the interests of an incapable adult are involved in litigation, the office of the Public Guardian and Trustee (the “PGT”) becomes involved. By way of background, the PGT functions in accordance with the Public Guardian and Trustee Act and…read more

A Tale of Two Suicide Notes

by: , March 8, 2021

2020 was an unusual year. Not only was there a global pandemic, but by sheer coincidence there was not one, but two estates applications in different provinces to determine whether a suicide note was a valid will. While the suicide note in Ontario was not found to be a valid Will, the one in British…read more

Medical Assistance in Dying (MAID) – Still Controversial

by: , August 28, 2020

In Canada, MAID has now been legal since June 2016 when the Parliament of Canada passed federal legislation that allowed eligible Canadian adults to request medical assistance in dying. However, the issue is by no means settled and the courts have been frequently called upon to referee MAID’s implementation and application. By way of background,…read more

Who makes decisions for me if I become incapable and have not made plans?

by: , April 29, 2020

Before COVID-19, many of us had earmarked 2020 as the year we would get our affairs in order, including preparing powers of attorney for personal care and property. Unfortunately we may have not gotten around to it.  The pandemic has accelerated discussions about intubation, CPR and end of life care.  Additionally, many people, especially those…read more

The Revival of Unconscionable Procurement

by: , April 8, 2020

The administrations of some estates simply do not move forward smoothly. The Elias Gefen estate is one such estate. In Gefen v. Gaertner, 2019 ONSC 6015, Justice Kimmel addressed multiple issues which had stopped the administration from moving forward, ranging from mutual wills to secret trust agreements. Justice Kimmel also applied, for the first time…read more

The LCO Takes on Dispute Resolution and Legal Capacity

by: , February 27, 2020

Ontario’s current legislative regime defining legal capacity and setting the rules for substitute decision-making and guardianship took shape in the late 1980s and early 1990s. Since then, significant demographic, legal, and social changes rendered the existing system inaccessible to all but a few. In their March 2017 final report on Legal Capacity, Decision-making and Guardianship…read more

Let’s Talk About Court Ordered Capacity Assessments

by: , August 10, 2018

Can one’s capacity be assessed against their will? The recent Ontario Superior Court of Justice decision in Erlich v. Erlich, 2018 ONSC 2911 sets out a useful overview for how and under what circumstances a court may order a person to undergo a capacity assessment, be they willing or otherwise. Background Robert Erlich (“Robert”) is…read more