The Consent and Capacity Board

by: , March 13, 2023

Capacity is often a key component of estate litigation, especially in the context of guardianship and attorneyship disputes. These fights are, for the most part, heard before the Superior Court of Justice. And yet, there is an administrative board with ‘capacity’ built into the name – the Consent and Capacity Board (“CCB”). What is the…read more

Lost or Destroyed Wills

by: , February 6, 2023

Sometimes original last wills and testaments can become lost or destroyed.  But the original is required for an application for a certificate of appointment of estate trustee, or is otherwise needed to establish the authority of the estate trustee(s) or gifts in the will. Rule 75.02 of the Rules of Civil Procedure, RRO 1990, Reg…read more

Choose Your Attorney Wisely: A Cautionary Tale

by: , December 6, 2022

Selecting your attorney for property is not a decision to be taken lightly. An attorney for property is a fiduciary, holds a position of trust, and can do anything with your money and property that you could do yourself , except make a Will. Needless to say, your attorney should be trustworthy, financially responsible, and…read more

The Litigation Guardian

by: , November 30, 2022

Rule 7 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides, in part, that unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. Generally, a party under disability is a minor (i.e. a…read more

What is the Role of Section 3 Counsel?

by: , November 11, 2022

If an individual whose capacity is in issue in proceedings under the Substitute Decisions Act (“SDA”) does not have counsel,  the court may direct the Public Guardian and Trustee (“PGT”) to arrange legal representation for that person. Pursuant to section 3 of the SDA,  the alleged incapable person is deemed to have capacity to retain…read more

Actions vs. Applications

by: , October 3, 2022

Generally, a court proceeding is categorized as either an action or an application. Both actions and applications end with a judge making a decision (judgment); however, an action concludes with a trial and live witnesses and an application is conducted by way of a ‘paper trial’ (i.e. no live witnesses). In both cases, judges will…read more

The ETDL and You

by: , April 25, 2022

Estate litigation cases often deal with multifaceted issues where family members feud about a variety of matters. Will challenges, dependant relief applications and passings of accounts are a few of the types of disputes which result in extensive, protracted and lengthy litigation. In such circumstances, parties often look to appoint an estate trustee during litigation…read more

“Separated” Spouses and Intestacy

by: , February 28, 2022

The law is constantly evolving and being refined. Most recently, a provision was added to Part II of the Succession Law Reform Act (the “SLRA”), which deals with how an estate is to be distributed when there is no will. In particular, on January 1, 2022, section 43.1 was amended to add that there is…read more

Estate Trustee Compensation

by: , December 6, 2021

An estate trustee is entitled to compensation for work performed in that capacity on behalf of an estate. Subject to any fee or compensation agreement, the general rule in Ontario is that an estate trustee is entitled to compensation in the amounts of 2.5% of all capital receipts and disbursements, and 2.5% of all revenue…read more

Supreme Court of Canada Unseals Sherman Probate Files

by: , July 7, 2021

On June 11, 2021, the Supreme Court of Canada released its highly-anticipated decision in Sherman Estate v. Donovan, in which the Court ordered that the Sherman probate files be unsealed. In its ruling, the Supreme Court of Canada affirmed the open-court principle and freedom of the press as fundamental pillars of Canadian democracy. Background The…read more