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Posts Categorized: Estate Administration
82 ResultsSalvador Dali, Melting Clocks, Financial Incapacity, and the Removal of an Attorney for Property!
“If the drawing of the clock was akin to Salvador Dali’s paintings, it would not bode well.” Colourful words from Justice Whitten who relied on the court’s parens patriae jurisdiction to remove an attorney for property. The drawing of an ordinary clock is often administered to determine “intellectual acuity”. Salvador Dali’s iconic image of a…read more
Objections to Trustee Accounts Must Be Specific
In reasons delivered last week in Michipicoten First Nation v. Michipicoten First Nation Community Trust, Justice Varpio emphasized that objections to trustee accounts must be specific. If objections are too vague, then the objectors run the risk of having their objections struck. An added risk of delivering vague objections is that the lack of specificity will result…read more
Limitation Period Precludes Motion to Set Aside Releases
In the usual litigation battle, a release operates as a “shield” in the sense that if a beneficiary sues an estate trustee, the estate trustee can use the release as a defence. In Re: Sheard, the estate trustees were able to use signed releases to preclude them from having to pass their accounts for the period…read more
What’s My Share?
Gail Evans died intestate on July 30, 1992. She was survived by her two sons from a first marriage, Richard and Donald, and by her second husband, Carlton. Carlton was the administrator (i.e. estate trustee) of Gail’s estate. The parties agreed Carlton was entitled to a preferential share of $75,000 and one third of the…read more
The General Who Would Be King
I recently travelled to Washington, DC. I was again reminded of the grandeur of a capital city and how well the Americans celebrate their past, Founding Fathers, and assorted heroes. American myth making can be beguiling. I had the opportunity to tour the Capital Building and George Washington’s ancestral home, Mount Vernon. It was at…read more
A Resulting Trust May Arise Before Death
In estate disputes, it is common for parties to try to claw back into the estate bank accounts that were held jointly with the testator before death. The law provides a mechanism to do this – a resulting trust. Briefly, a resulting trust works as follows: any time property is transferred to someone else for…read more
When Co-Estate Trustees Cannot Agree To Sell The House
While administering an estate, one of the most difficult challenges an estate trustee can face is the situation where a beneficiary continues to reside in a property that is an estate asset when the estate trustee wishes to list the property for sale. When there is disagreement on this issue amongst co-estate trustees, an estate…read more
Court Need Not Always Order a Fiduciary to Account
In an earlier blog by fellow blogger Jasmine Sweatman, she commented on the emerging principle of proportionality in our judicial system and how it might impact on a fiduciary’s duty to pass accounts. She queried: Where does proportionality “fit” with the right of a beneficiary of an estate or trust to review and make inquiries of the…read more
Enzo the Mixer
May an attorney for property mix his own funds with that of the incapable person? The short answer is: never. But the consequences for a well-meaning but ill-advised client might not be as dire as we litigators sometimes would expect. In the recent case of Villa v. Villa 2013 ONSC 2202, two brothers, Renzo and Enzo Villa, clashed…read more
Do You Need A Lawyer to Make a Will?
Among the general public, there is a perception that despite being a legal document, creating a will does not require the services of an estate solicitor. There are numerous do-it yourself kits and online services that offer a “fill in the blanks” approach to creating a will. As an estate litigator, I usually see when…read more