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…
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…
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…
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…
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…
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…
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…
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…
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…
Rose v. Rose is a recent Ontario case that deals with marriage breakdown, disillusioned children, and the finality of an irrevocable trust. Brian and Janice were married and had two daughters. In 1992, Brian and Janice transferred a ski chalet and cottage into trust for the benefit of their daughters. Brian was the trustee for…