Legal Papers
Papers Topic: Estate Litigation
37 PapersPassing of Accounts – 2013
If a theme were to emerge from the contested passing of accounts cases that were decided in 2013, it would be “protect the innocent”. In some cases, this theme manifested itself in decisions to remove trustees who acted improperly or to surcharge trustees who misappropriated funds. In other cases, judges protected honest (albeit imperfect) fiduciaries…read more
Fraudulent Breach of Trust
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
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
Production of Estate Documents in Contested Beneficiary Litigation
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
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
Update on Solicitors’ Negligence Issues
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
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
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
Order for Directions and Pleadings: Laying the Groundwork for Successful Will and POA Challenges
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
Handwriting Experts and Trustee Indemnification
Fraud is not restricted to the living. Occasionally, a fraudulent testamentary document makes an appearance and the question of validity becomes paramount. In that context, the issue of whether to retain a “handwriting expert” is raised. Read the full paper here: Handwriting Experts and Trustee Indemnification by Justin de Vries