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Posts Categorized: Estate Litigation
187 ResultsClash of the Limitation Periods
The Limitations Act, 2002, SO 2002, c 24, Sch B, brought order and clarity to limitation periods in Ontario. However, the Limitations Act did not displace all existing limitation periods established by statute. Several carve-outs which are particularly relevant to estates litigators includes the Real Property Limitations Act, RSO 1990, c L.15 and s. 38(3)…read more
Minimum Evidentiary Threshold for Will Challenges
What is the minimum level of evidence to be met before a court allows a will challenge to proceed? The recent Ontario Superior Court of Justice decision in Naismith v. Clarke, 2019 ONSC 5280 (“Naismith”) sets out a useful overview for the circumstances under which a court may allow a will challenge to move forward….read more
Testamentary Freedom – A Fundamental Right?
Whether testamentary autonomy is a constitutionally protected right has not been considered by the courts … until now. The rules of testamentary succession (i.e. wills and estates) are governed by provincial law. While each province and territory has its own set of statutes, most have imposed some requirements that the deceased make “adequate provision” for…read more
Sealing One’s Fate: The Sherman Murders, Probate and Perseverance
The Sherman murders remain famously unresolved and still generate headlines and notoriety. But, for better or worse, life moves on and Barry’s and Honey’s respective estates (collectively the “Sherman Estates”), however mundane, need to be probated and administered. In that regard, the Court of Appeal for Ontario (“OCA”) recently released a decision on an appeal…read more
Supreme Court Blesses Henson Trusts
The Supreme Court of Canada has given its blessing to Henson Trusts (fully discretionary trusts set up to not impact the beneficiary’s social assistance benefits) in S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4. I previously blogged about this case when it was before the Court of Appeal. The Metro Vancouver Housing Corporation (the…read more
To Remove or Not to Remove … That is the Question
Estates tell a million stories and the case of Ford v Mazman, 2019 ONSC 542, is just one of them. Mary died on April 3, 2017. Mary’s 2004 Will named her two nieces, Laura and Carleen, as sole beneficiaries. Mary appointed her close friend, Seta, as her estate trustee/executor. Laura had travelled to Ontario from…read more
Milne Estate (Re)visited
The decision of Milne Estate (Re) (“Milne”) caused a stir among the members of the estates bar and solicitors who draft wills, going so far as to illicit an alert from LawPRO. While the Milne decision (which is under appeal) has garnered a great deal of attention and commentary from lawyers (including Justin de Vries’…read more
Not So Fast – Who Controls the Body?
“He knows where the bodies are buried” is a throwaway line from Orson Wells’ cinematic masterpiece, Citizen Kane. That line soon took on a life of its own and entered the cultural vernacular. In the world of estates, a more frequent problem is not finding the bodies but deciding where to bury the bodies. In…read more
It’s All About The Benjamin Orders
Did William die? If so, when? These were the central issues addressed in Steele v. Smith, 2018 ONSC 4601. There, the Court had to consider whether the estate trustee of William’s sister’s estate should receive a “Benjamin Order”, permitting the estate trustee to distribute the residue of her estate as if William had predeceased her. The…read more
40oz. to Testamentary Freedom
Is the fact that one is a chronic alcoholic enough to deprive them of their testamentary freedom? In Dujardin v. Dujardin, 2018 ONCA 597, the Court of Appeal for Ontario explored this issue when it was tasked with determining the validity of two wills that were executed by a known drunkard. Background Jacques Henry Dujardin…read more