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Posts Categorized: Estate Litigation
183 ResultsFirst physician-assisted suicide case in Ontario
Much has been written about last month’s physician-assisted suicide decision by Justice Perell of the Ontario Superior Court of Justice in B. (A.) v. Canada (Attorney General). Ever since the Supreme Court handed down the historic decision of Carter v. Canada (Attorney General) (previously discussed here), as well as its companion decision delaying implementation for an additional four months while…read more
Digital Assets Remain a Puzzling Subject in Estates
Peggy Bush, a 72-year-old Victoria B.C. resident, lost her husband David to cancer in August. Peggy, who David left his entire estate to, was able to transfer the title of their house and car to her name without issue by using a notarized death certificate and a copy of the will. The only asset Peggy…read more
When is a Handwritten Will Valid?
Linda was cleaning up her deceased sister-in-law Cynthia’s new apartment when she discovered a document inside a Sobeys bag. It was in the deceased’s handwriting and discussed distributing her property upon her death. It named Linda as executrix. As Linda continued to clean Cynthia’s residence she found another such handwritten document (this time, tucked away on…read more
Aging Population Brings Greater Risk to Guardianship System
An article last month in the Wall Street Journal entitled “Abuse Plagues System of Legal Guardians for Adults” noted a variety of complaints across the United States about guardians of property and personal care. In one nightmarish story, 71-year old Linda McDowell’s former housemate and companion helped file a court petition, unbeknownst to Ms. McDowell, seeking…read more
A Judge’s Three Tips to Improve Scheduling Appointments
I had the privilege of hearing the Honourable Justice Thomas McEwen of the Ontario Superior Court of Justice speak at The Advocates’ Society’s Estates Litigation Networking Reception on November 23, 2015. Justice McEwen sits in Toronto and is currently the Civil Team Leader. Justice McEwen noted that the system of 9:30 a.m. scheduling appointments on the…read more
Ontario Court of Appeal Endorses Tougher Approach for Vexatious Litigants
Ontario officially added Rule 2.1 to its Rules of Civil Procedure on July 1, 2014. The rule gives the courts a general power to stay or dismiss proceedings if they are “frivolous or vexatious or otherwise an abuse of the process of the court.” The court may do so on its own initiative, although any…read more
Supreme Court Dismisses Expert Witness Appeal
As I previously blogged, the Court of Appeal for Ontario held in Westerhof v. Gee Estate, 2015 ONCA 206 that witnesses with special expertise who give opinion evidence not formed for the purposes of litigation do not have to comply with the strict procedural requirements for expert witnesses. The losing party sought leave to appeal…read more
Actions to be Dismissed for Delay on January 1, 2017
A doomsday cult believes the world will end on January 1, 2017 (at least according to the British press). If the earth somehow survives, we will need to face the consequences of another event occurring on that date: the dismissal for delay of numerous actions without notice. Rule 48.14 of the Rules of Civil Procedure…read more
“On Title” Versus “Entitled”: The Doctrine of Resulting Trust
A common estate planning technique to avoid probate tax is for a parent to transfer his or her house into joint tenancy with one of his or her children. That way, when the parent dies, the property passes by way of survivorship from the parent to the child without the need to go through probate…read more
Nova Scotia repeals “habitual drunkard” law
Until earlier this month, Nova Scotia had a statute on the books called the Inebriates’ Guardianship Act, R.S.N.S. 1989, c. 227 which allowed for the court to appoint a guardian over a “habitual drunkard”. While Nova Scotia has other statutes which allow the Court to appoint a guardian for a person found to be incapable,…read more