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Posts Tagged: Estate Litigation
69 ResultsB.C Estate Trustee Ordered to Pay Back Estate Funds
Estate Trustees are often under pressure to distribute estate funds to beneficiaries as soon as possible. Beneficiaries may express frustration about having to wait for an estate trustee to receive a tax clearance certificate or respond to other administrative issues, such as collecting assets. When probate has not been granted to an estate trustee because…read more
Summary Judgment – No Longer for the Brave or Foolhardy
The recent decision of the Supreme Court of Canada (SCC) in Hryniak heralds a sea change in summary judgment motions in Ontario and will have a profound impact on estate litigation. Many lawyers in Ontario have long groused that the Ontario Court of Appeal (OCA) was overly restrictive in its interpretation of summary judgment rules both before…read more
Be Careful What You Wish For – You Just Might Waive Solicitor-Client Privilege
The recent Ontario Superior Court decision of Lamoureux v Lamoureux illustrates the care with which clients and counsel must take when submitting evidence to court. Without proper forethought, a party may unintentionally waive solicitor-client privilege. André Lamoureux brought an action against Charles Lamoureux in 2007 (unfortunately, the recent decision does not explain what the originating…read more
A Wedding, A Will Signing, and a Witness
In Zerbinati v. Zerbinati 2013 CanLII 86428 (ON SC), the respondents to an application for the determination of the validity of the last will and testament of Valentino Mario Zerbinati (“Valentino”) brought a motion for “non-suit” on the grounds that the formal validity of Valentino’s Will had not been established. The applicants were the testator’s son, Valentino…read more
What’s My Share?
Gail Evans died intestate on July 30, 1992. She was survived by her two sons from a first marriage, Richard and Donald, and by her second husband, Carlton. Carlton was the administrator (i.e. estate trustee) of Gail’s estate. The parties agreed Carlton was entitled to a preferential share of $75,000 and one third of the…read more
What Not to Wear: Court Edition
Effective November 18, 2013, there are some important procedural changes affecting estate, trust, and capacity matters in Toronto. For some time now, the Toronto court has maintained a separate “Estates List” to hear all matters relating to the administration of trusts and estates and substitute decision making. As an estates litigator, I have been an…read more
Lawyer’s Questionnaire Admitted to Probate as a Will
Courts are sometimes asked to determine if a “testamentary-like” document is a will. In British Columbia, an executor brought an action to prove in solemn form that a questionnaire that the testator (“Ms. Garnett”) filled out and signed before two witnesses shortly before her death was a will that could be submitted for probate. Ms. Garnett was…read more
A Resulting Trust May Arise Before Death
In estate disputes, it is common for parties to try to claw back into the estate bank accounts that were held jointly with the testator before death. The law provides a mechanism to do this – a resulting trust. Briefly, a resulting trust works as follows: any time property is transferred to someone else for…read more
When Will A Court Order a Mental Examination?
In what circumstances will a court order a plaintiff to undergo a mental examination to determine whether she is a party under a legal disability who has to be represented by a litigation guardian? This was one of the issues for the court to determine in the recent Ontario case of 626381 Ontario Limited et al….read more
When Co-Estate Trustees Cannot Agree To Sell The House
While administering an estate, one of the most difficult challenges an estate trustee can face is the situation where a beneficiary continues to reside in a property that is an estate asset when the estate trustee wishes to list the property for sale. When there is disagreement on this issue amongst co-estate trustees, an estate…read more