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Posts Categorized: Estate Litigation
179 ResultsWill Challenges by Estate Trustees – A Hard Sell
If you take steps to administer an estate pursuant to a will or to otherwise behave as if a will is valid, you may lose the right to later challenge that will. In Neuberger v. York, a decision of Justice Greer released in November 2014, she considered a motion to dismiss a will challenge that…read more
Summary Judgment and Trotter Estate
As expected, the Supreme Court of Canada’s major decision in Hyrniak v. Mauldin has led to an increased use of the summary judgement motion in Ontario. On a motion for summary judgement, a court disposes of a case without the need for a costly and time consuming hearing or trial. However, some recent court decisions…read more
Can You Give A Cottage Back?
It is common to find a provision in a will which allows the estate trustee to distribute assets in specie – meaning instead of selling all the estate assets and dividing the proceeds between the beneficiaries, the estate trustee may transfer the assets directly to the beneficiaries as payment in kind. Giving the estate trustee…read more
Alcoholism Alone Not Enough to Negate Testamentary Capacity
In daBalinhard, the Saskatchewan Court found that a history of alcoholism, short term memory loss and unusual behavior was not enough to sustain a will challenge. After a forty-year marriage, the testator, John, and his wife, Shirley, separated on August 16, 2011. Two months after their separation, John executed a new will on October 20,…read more
Being Removed or Renouncing as Estate Trustee?
Although they sound similar, there are important procedural differences between “removing” an estate trustee and “renouncing” the right to act as an estate trustee. Where the named estate trustee has not yet begun acting in her role as estate trustee (i.e. she has not yet undertaken any work administering the estate), she may “resign” or…read more
Beneficiaries Left Paying for Estate Trustee’s Mortgage
Can an estate trustee’s ability to mortgage an estate property be limited by s. 9 of the Estates Administration Act? This was the question recently addressed by the court in Di Michele v. Di Michele. Section 9 of the Estates Administration Act allows for real property to automatically vest in the beneficiaries of an estate…read more
Limitation Period in Will Challenges
Limitation periods generally aim to strike the appropriate balance between an aggrieved party’s right to seek redress and a potential defendant’s right not to remain under the cloud of litigation indefinitely. Limitation periods also address the concern that it would be unfair for a person to defend him or herself against allegations when the passage…read more
Orders for Directions in Estate Litigation
Orders for directions can be sought at any time where appropriate in the context of estate litigation. However, parties typically seek such an order at the outset of the litigation. Moreover, it usually becomes apparent to the parties early on that many will or POA challenges, which are commenced by way of notice of application,…read more
Dependant’s Relief and Competing Claims
In the recent case of Cowderoy v. Sorkos Estate, 2014 ONCA 618, the Ontario Court of Appeal considered the question of how competing claims against an estate are to be appropriately balanced. Gus Sorkos and Victoria Cowderoy were in a common-law relationship until Victoria’s death in 2001. During that time, Gus became close with Victoria’s…read more
Calculating Dependant’s Support – A View from the Divisional Court
The background in Quinn vs Carrigan is well known to estate and family law litigators as the parties have been involved in extensive litigation, including two trials and two appeals. The first trial and its subsequent appeal, which focused on the issue of who is a “spouse” pursuant to the Pension Benefits Act, led to…read more