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

Being a Spouse Matters: Two Examples

by: , February 26, 2024

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

by: , February 13, 2024

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

by: , December 22, 2023

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

by: , November 14, 2023

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

The Guardianship Application

by: , November 6, 2023

We see a lot of guardianship disputes in the estate litigation world. Typically, a guardianship application arises when an individual lacks capacity to manage his or her property and/or personal care, and there is no power of attorney in place to make financial and/or personal care decisions on behalf of that incapable person. In such…read more

A brief primer on mediations

by: , September 11, 2023

Overview Estate litigation is a long, slow and expensive endeavour. Will challenges, support claims or objections to the appointment of a trustee often drag on for years, and can swallow much of the value of the estate at issue. One way to avoid the cost and delay is through a mediated settlement agreement. The purpose…read more

What Do You Mean? Testamentary Intention and the Interpretation of Wills

by: , August 30, 2023

In the legal world, “testamentary intentions” refer to a person’s wishes for the administration of their estate and distribution of their assets after death. The last will and testament (often referred to simply as a “will”) is the document which sets out the testator’s (i.e. the person who signed the will) testamentary wishes. Problems arise…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

Court Approval of a Settlement – A Refresher

by: , July 11, 2023

There are many reasons parties may settle a lawsuit: a settlement mitigates the risks of losing in court, and puts an end to the emotional and financial drain of litigation. If all the parties to the litigation are capable adults, there is no barrier to reaching (and implementing) a settlement: once the settlement agreement is…read more