The determination of whether a person is incapable is ultimately a legal one not a medical/clinical one. While a report from a certified capacity assessor is not necessarily required, the convention among lawyers and the court is to rely on a capacity assessment as the best evidence of incapacity where capacity is in dispute.
2016 saw the release of numerous interesting and important estates and trusts decisions. Justin de Vries and Joanna Lindenberg have summarized the top cases from the year and explained their impact on estates and trusts law. Starting with a discussion of the Court of Appeal decision in Spence v. BMO Trust Company, this paper also touches on…
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…
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 ,…
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…
As noted by one jurist[1], to the extent that it was not clear prior, the Ontario Court of Appeal made it abundantly clear in McDougald Estate v. Gooderham[2] that the modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the court finds that some public policy consideration applies,…
Recent amendments to Ontario’s Rules of Civil Procedure (“Rules”) have introduced sweeping changes meant to make the civil justice system more affordable and accessible. The changes are the most significant in a generation; litigation in Ontario will not be the same. Among the changes is the addition of the proportionality rule as an overarching principle…
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…