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Posts Categorized: Estate Litigation
183 ResultsThe Standard of Review
When a decision does not go your way, it can be tempting to march straight to the Ontario Court of Appeal to…well, appeal the decision. However, the Ontario Court of Appeal is not an easy second kick at the can. The court will only review a decision if there is a question of fact, law,…read more
Tolling Agreements
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
Renounce, Remove, or Pass Over – What’s the Difference?
Not everyone is well suited or willing to act as an estate trustee – the job can be onerous and family dynamics can make it especially challenging. As a result, the person named as an estate trustee in a will, or who has the first right to act as estate trustee under the Estates Act,…read more
Replacing an Estate Trustee
Overview In some cases, an estate trustee (“ET”) has been appointed, but needs to be replaced before the estate administration is complete. This can occur for a variety of reasons: the ET becomes unable or unwilling to continue acting for the estate, the ET is removed by the Court in the course of litigation, or…read more
Can Estate Trustees Keep a Holdbacks for Legal Fees?
Right to Indemnification of Legal Fees Section 23.1 of the Trustee Act, RSO 1990, c T.23 confirms that estate trustees are entitled to be indemnified for the legitimate costs of carrying out their duties. In other words, estate trustees should not have bear the costs of the estate administration. This includes an estate trustee’s legal…read more
The Scope of Cross-Examination on an Interlocutory Motion
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
Being a Spouse Matters: Two Examples
Ontario law recognizes two forms of spousal relationships: marriage and common law partnerships. While certain statutes may modify or create their own definition of common law partnership, the definitions found at s.1 and s. 29 of the Family Law Act, RSO 1990, c F.3 are the standard. As a reminder, in Ontario, a common law…read more
Cost Awards: A Breakdown
One of the most common concerns voiced by litigants is how they can recover their costs of the litigation. In Ontario, you do not need to bring a separate claim against the opposing party to recover your legal fees. Rather, at the end of the litigation (or at the end of a particular step of…read more
Principles of Will Interpretation
In the recent case of Kurt v. Kurt and Sullivan, 2023 ONSC 6599 (CanLII), (“Kurt”), the Court was asked to consider the interpretation of a will. The parties agreed on most of the salient facts, but disagreed with respect to the interpretation of one clause of the deceased’s secondary will. The Court reviewed the legal…read more
Interim distributions
As many people know, in addition to being expensive, litigation is often slow-moving and lengthy. In an estate with significant or contested issues, litigation can continue for several years. Even in estates without significant disputes, applying for a certificate of appointment and administering an estate can take many months. Further, once a certificate of appointment…read more