Legal Papers
Preserving, Holding, or Otherwise Dealing with Estate Assets during Litigation: What are the Options in Troubled Times?
Will 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, Will Challenges will likely only increase in quantity and complexity. Laying the groundwork for a Will Challenge is obviously…read more
Removing an Attorney for Property: Why, When and How
While fully capable, a person has the right to grant powers of attorney to a family member or close personal friend. Once a person becomes incapable of managing his/her property, or making personal care decisions, the appointed attorney(s) can act in his/her place. Attorneys for property or personal care are governed by the Substitute Decisions…read more
The Will to Challenge and the Power to Succeed
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
Dead Ringers and Down Payments: Summary Judgment in Estate Litigation
Motions for summary judgment are powerful tools in the arsenal of any litigator. However, until relatively recently such motions were generally regarded as beyond the reach of, or not available to, the estate litigator. That reality has changed and there are now “new facts on the ground”. This paper will address summary judgment motions. After…read more
A Smorgasbord of Issues between an Estate Trustee and His/Her Solicitor
The recent case of Rooney Estate v. Stewart Estate serves to highlight the “distinct” but complimentary” roles of the estate trustee and the estate solicitor. The case makes for interesting reading and addresses a smorgasbord of issues that are all too common. A Smorgasbord of Issues between an Estate Trustee and His Solicitor by Justin…read more
FLA Spousal Elections & the Impact of Iasenza v. Iasenza Estate
As is widely known, the Family Law Act[1] (“FLA”) allows a surviving spouse to elect to either receive benefit under the deceased’s will (or on an intestacy if there is no will), or receive an equalization of net family property under the FLA. Normally, the surviving spouse seeks information regarding each of the options and…read more
Understanding Limitation Periods in Estate Litigation
As is widely understood, 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 or to answer for a wrong where it has become difficult, if not impossible, to marshal the evidence. However, limitation…read more
Dependant Support: Claim by the Spouse, Common-Law Spouse, Same-Sex Partner or Ex-Spouse
Introduction Part V of the Succession Law Reform Act [1] permits the dependant of a deceased person to apply to the court for an order of support where a deceased person has failed to make adequate provision for the proper support of the dependant. Who May Apply Dependants include the following persons: (1) the…read more
Variation of Trusts Act – A Case Law Primer
This paper will address a number of cases that have considered the Variation of Trusts (the “Act”). It is not hyperbole to state that there is a plethora of variation of trust cases. However, the cases chosen are either leading cases in the area or cases that show a unique set of circumstances in which…read more
Trustee Liability: When Will A Trustee Be Excused
When errors by a trustee cause losses to a trust, the question arises as to who should be forced to bear the weight of those losses: the beneficiaries or the trustees? On the one hand, it seems unfair that a beneficiary should lose because of the mistakes of someone who is in charge of administering…read more