Legal Papers

Fraudulent Breach of Trust

by: , November 4, 2014

All is not lost where the trustee of a trust breaches his fiduciary obligation, misappropriates trust assets, and disappears. Where there has been a fraudulent breach of trust, the defrauded beneficiaries are able to pursue strangers to the trust for damages or the return of the trust property. There are three main circumstances in which…read more

Orders for Directions and Pleadings

by: and , October 7, 2014

Will and Power of Attorney (“POA”) challenges are becoming more common. Whether it is the result of the much-vaunted and long-heralded wealth transfer between generations, the aging of society, or an American inspired litigious approach to sorting out life’s inevitable disputes, these court challenges will likely only increase in quantity and complexity. Laying the groundwork…read more

What to do on the Death of a Business Owner

by: and , May 12, 2014

An executor faces unique challenges in administering an estate where the deceased owned a business before death.  The executor should keep the following steps should be kept in mind: • Find the will • Determine the estate assets and liabilities. Understand where the estate ends and the business begins • Determine the scope of the…read more

2012 Recent Guardianship Cases – A Critical Analysis

by: and , May 1, 2014

Guardianship or power of attorney disputes are never pleasant. Unfortunately, such disputes usually involve family members and often drag up long standing, unresolved issues between family members. Litigants can quickly lose perspective, disregard the best interests of the incapable person, and engage in scorched earth litigation. As the population ages and lives longer, such family…read more

Production of Estate Documents in Contested Beneficiary Litigation

by: and , May 1, 2014

When an estate is involved in litigation against its beneficiaries, the production of estate documents is often a highly emotional subject, not to mention legally complex.  The complexity is due to the convergence of multiple forms of disclosure obligations and privileges, some of which are unique to estates litigation.  These include: –  A trustee’s obligation…read more

Duty and Standard of Care of Solicitors Practicing in Estates

by: and , February 19, 2014

A solicitor owes a duty of care to his or her client.  This duty arises in contract (under the terms of the retainer agreement) and as a professional duty imposed on all lawyers to act with skill and competence when serving their client. The appropriate standard of varies with the circumstances and type of legal…read more

Passing the Trustee’s Accounts When There Are Business Assets

by: and , January 23, 2014

At the beneficiaries’ insistence, or at his own initiation, a trustee may apply to court to pass his accounts. Once in court passing format, the accounts will list the deceased’s assets as of date of death, and trace any subsequent disposition of those assets. However, where the estate assets include one or more businesses, the…read more

Update on Solicitors’ Negligence Issues

by: , January 23, 2014

There are unique challenges faced by estates and trust practitioners when taking estate planning instructions. Estate planning is something that most folks are reticent to do in the first place – for many, it languishes on a list of “should do’s” for some time before something – a pending divorce, a scheduled plane trip, a…read more

A Practical Guide to Capacity Assessments

by: , January 20, 2014

When the central issue in litigation is whether a person is capable or not, a capacity assessment can be an invaluable tool to assist the Court in making that determination. However, such an order is (and should be) difficult to obtain. To adopt the words of Justice Pattillo in Flynn et al v. Flynn ,…read more

Unusual Will Clauses & Oddball Estate Cases

by: and , November 11, 2013

As the estates bar knows all too well, a last will and testament can be the final chance for a person to communicate his or her thoughts, wishes and desires to the world.  It is no surprise then that a will often reflects the idiosyncrasies of its author, whether in form or in content. Some…read more