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Posts Categorized: Uncategorized
50 ResultsAn Appeal Is Not A Do-Over
It is often said that in a court battle there is a winner and a loser. The court must decide which facts and evidence it prefers and which party the law favours. After a decision is made by the judge who heard the application or trial, a party may “appeal” the decision to a higher…read more
You’ve Been Served…I think!
The importance of service of court documents should not be overlooked, as improper service may result in a party being noted in default, which invariably leads to adverse consequences for a litigant. While service by e-mail has simplified and made the service of documents easier and more convenient in many respects, an originating process, for…read more
Limits to the Court’s Will Validating Power under Section 21.1(1) of the SLRA
In October 2023, my colleague Karen Watters wrote about the addition of section 21.1(1) to the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”). Section 21.1(1) provides the Court with the power to validate a will or a document as valid and fully effective even if it does not comply with the regular…read more
Who Has A “Financial Interest” In An Estate?
In matters and disputes involving estates, there are rules in the Rules of Civil Procedure which refer to persons who appear to have a “financial interest” in an estate. The description of a “financial interest” in an estate limits who may take certain steps in an estate dispute. One example is persons who may apply…read more
Participant Expert Evidence in Estate Litigation
In some estate litigation the evidence of an expert witness can be a critical piece of evidence. Rule 53.03 of the Rules of Civil Procedure governs expert evidence and expert reports. Section 52 of the Evidence Act addresses reports and evidence of practitioners who are identified as: (a) a member of a College as defined…read more
The Minimum Evidentiary Threshold to Challenge a Will Is Alive and Well in Ontario
In the recent decision in Giann v. Giannopoulos, 2024 ONCA 928 (CanLII), the Court of Appeal for Ontario upheld the lower court’s decision dismissing a Will challenge application as the evidence failed to meet a standard called the “minimum evidentiary threshold”. This means that in order to be able to move forward with a Will…read more
Discretionary Trusts
The validity and interpretation of wills often lie at the heart of estate litigation cases. However, disputes often centre upon other testamentary documents such as discretionary trusts. The purposes of this blog is to provide a brief overview of the characteristics of a discretionary trust. In a discretionary trust, the trust property is vested in…read more
When will the Court Remove and Replace an Attorney for Property?
When executing a power of attorney for property, a person is free to choose whoever they want to act as their attorney for property when the time comes. However, it can sometimes be the case where a person’s named attorney for property, even their own family, take advantage of their position of power, and begin…read more
Accounting as Attorney for Property or Trustee de son tort
The court can grant leave to compel an attorney for property to pass their accounts under s. 42 of the Substitute Decisions Act, 1992, SO 1992, c. 30 (“SDA”). Whether or not the court will grant leave to compel a passing of accounts will be determined by considering the test set out in Lewis v….read more
Contempt and Custodial Sentences
I previously blogged about orders for contempt and the nuances associated with seeking and obtaining this declaratory relief. This blog will take the discussion a step further and look at what penalties may be imposed upon a contemnor; in particular, the discussion will centre upon the penalty of jail time or a custodial sentence (these…read more