It is a well-recognized principle of law that communications between a client and his lawyer are privileged and remain private and confidential even after death. Only the client can choose to waive privilege and allow the communications to become public. Waiver can be either explicit or implicit. One well known example of implicit waiver of…
If you take steps to administer an estate pursuant to a will or to otherwise behave as if a will is valid, you may lose the right to later challenge that will. In Neuberger v. York, a decision of Justice Greer released in November 2014, she considered a motion to dismiss a will challenge that…
As expected, the Supreme Court of Canada’s major decision in Hyrniak v. Mauldin has led to an increased use of the summary judgement motion in Ontario. On a motion for summary judgement, a court disposes of a case without the need for a costly and time consuming hearing or trial. However, some recent court decisions…
Although they sound similar, there are important procedural differences between “removing” an estate trustee and “renouncing” the right to act as an estate trustee. Where the named estate trustee has not yet begun acting in her role as estate trustee (i.e. she has not yet undertaken any work administering the estate), she may “resign” or…
Can an estate trustee’s ability to mortgage an estate property be limited by s. 9 of the Estates Administration Act? This was the question recently addressed by the court in Di Michele v. Di Michele. Section 9 of the Estates Administration Act allows for real property to automatically vest in the beneficiaries of an estate…
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. Limitation periods also address the concern that it would be unfair for a person to defend him or herself against allegations when the passage…
When someone tries to challenge a will in court, undue delays on the challenger’s part can be fatal to their claim. The Rules of Civil Procedure, Ontario’s legal procedure guidelines, say that a civil claim can be dismissed for delay if, after the initial pleadings stage, the action isn’t set down for trial within six…
Can individuals who may have an obligation to support a person making a dependant’s support claim against an estate be added as parties to the support claim? That was the question before the court in Brash v. Zyma. The short answer? Yes. In 2012, Charles Douglas Brash died. At the time of his death, he had…
One of the best ways for a litigator to learn is to sit in open court watching other litigators suffer through embarrassing court room experiences. In one of my early days appearing on the Estates List, I had one such experience, and the litigator’s lesson that day centred on the often-misunderstood deemed undertaking rule. On…
McConnell v Huxtable (ON CA) is a family law dispute with implications for estates and trust law. The parties were in a relationship from 1993 to 2007 – they were not married and did not have children together. The common law husband bought and sold two houses during the relationship and owned a third home…