Lawyer’s Questionnaire Admitted to Probate as a Will

by: , November 4, 2013

Courts are sometimes asked to determine if a “testamentary-like” document is a will.  In British Columbia, an executor brought an action to prove in solemn form that a questionnaire that the testator (“Ms. Garnett”) filled out and signed before two witnesses shortly before her death was a will that could be submitted for probate. Ms. Garnett was…read more

If There is a Valid POA, the Court Cannot Order a Guardianship

by: , September 30, 2013

The recent decision in Lehtonen v. Neill serves as a useful reminder of the sometimes overlooked subsection 22(3) of the Substitute Decisions Act.   This provision prohibits the court from appointing a guardian where the court is satisfied that decision making for the incapable person can be met by a less intrusive means.  It says: The Court shall not…read more

Post Security or Go Home

by: , September 20, 2013

You don’t often hear about a motion for security for costs in estate litigation (if nothing else the parties are usually very much present in the jurisdiction and have some financial worth).  However, estate litigants have been ordered to post security for costs just as in any other civil litigation.  Equally, estate litigants have successfully…read more

When Is It Too Late To File A Notice Of Objection To The Appointment Of An Estate Trustee?

by: , August 26, 2013

In a recent case, the court had to determine if a notice of objection to the issuance of an appointment of an estate trustee could be filed after summary judgment had been granted, striking another objector’s objections as invalid and a certificate of appointment had been issued to the estate trustees. By way of background, the…read more

Keep the Trains Running: The Importance of a Status Hearing

by: , July 30, 2013

In a recent decision by the Ontario Court of Appeal, the court turned its attention to a frequently encountered issue in civil litigation: under what circumstances should an action be dismissed  for delay by the court following a status hearing?  The appellant (plaintiff) appealed a lower court order dismissing the action for delay after a status hearing….read more

The Doctrine of Abuse of Process

by: and , February 27, 2007

The Supreme Court of Canada had this to say about abuse of process: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way…read more