Tolling Agreements

by: , May 14, 2024

Limitation periods should always be on the mind of a litigator. Getting caught on the wrong side of a limitation can derail a lawsuit or court application: no matter how strong your case is, if you are out of time, it won’t even get off the ground. Often the first thing a lawyer will do…read more

The Scope of Cross-Examination on an Interlocutory Motion

by: , March 4, 2024

A deponent or affiant may be cross-examined on their affidavit sworn in support of or in response to a motion.  If a question on cross-examination is not answered, then it will be deemed a refusal.  The examining party may bring a refusals motion to compel answers to the refused questions should they be maintained.  Sometimes…read more

Seeking Court Approval of a Settlement in Writing

by: , January 16, 2024

Minors and incapable persons are protected in a variety of ways in Ontario’s court system. One form of protection comes through Rule 7 of Ontario’s Rules of Civil Procedure (the “Rules”). In particular, subrule 7.08(1) provides: “No settlement of a claim made by or against a person under disability, whether or not a proceeding has…read more

Court-ordered Wills and s. 21.1(1) of the SLRA

by: , October 23, 2023

January 2022 brought significant changes to a governing statute in estates law: the Succession Law Reform Act[1]. One such change provides the Court with authority to declare a will valid and fully effective despite its non compliance with legislative requirements for formal execution.[2]  The legislative requirements provide that a will is not valid unless: (a) it…read more

Lost connection: A brief overview of jurisdiction

by: , September 25, 2023

In today’s global economy, it’s not unusual for an estate to hold property across several provinces or countries. Where litigation involving such an estate looms ahead, there is always the question of where to bring the claim, also known as jurisdiction. One thing to keep in mind is that each province is its own jurisdiction….read more

(In)Capacity to instruct counsel

by: , July 25, 2023

July 25, 2023 In the world of estate litigation, an issue that frequently arises is the capacity of an elderly individual to create a will or execute a power of attorney. As is widely known, there are different levels of capacity required for an individual to carry out different tasks; the highest level of capacity…read more

How Do Judges Decide Who Is Lying?

by: , May 31, 2023

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

by: , May 1, 2023

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

by: , April 24, 2023

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

When Will a Court “Combine” Separate Proceedings?

by: , March 6, 2023

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