de VRIES LITIGATION

Passing of Accounts when the Grantor is Presumed Capable

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In Winkler v. Thompson, the court considered whether a niece who held a power of attorney for property for her uncle (the “Deceased”) but insisted that she never acted in a fiduciary capacity for the Deceased should have to pass her accounts. The Deceased was survived by his estranged spouse (“Ilse”) and his niece (“Crystal”). Crystal agreed to pass her accounts when requested to by Ilse. Crystal, who held a….

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Passing Of Trustees’ and Executors’ Accounts, Power of Attorney

Legislative Amendments Proposed in Light of Calmusky

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On March 16, 2020, the Superior Court of Ontario released its decision in Calmusky v Calmusky. In Calmusky, the Court applied the presumption of resulting trust to a RIF that was designated to a particular beneficiary. The beneficiary was unable to rebut the presumption, and the Court ordered that funds from the RIF were to be paid to the estate. For a more detailed discussion on Calmusky, see Demetre Vasilounis’….

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Contested wills, Contracts, Estate Administration, Estate Litigation, Estate Planning, Executors, Investments, Joint Tenancy, Resulting Trust, Trusts

Removing an Estate Trustee: More Than a Feeling

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In Viertelhausen v Viertelhausen, the court dismissed an application to remove the estate trustee due to lack of evidence of a true conflict of interest. The deceased, Bote, died without a will. His brother, Bill, obtained a certificate of appointment of estate trustee without a will. The applicant, Teresa (a niece of both Bill and Bote) who was also a beneficiary of Bote’s estate, commenced an application to remove Bill….

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Estate Litigation

Who Can Be a Litigation Guardian?

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A recent decision by Master Kaufman examines whether a person with a personal interest in the legal proceedings can act as a litigation guardian for a party under a disability. In Shady Saleh v. Mohammed Salehe, the plaintiff, Shady, was his mother’s power of attorney for property. He sought to be appointed his mother’s litigation guardian.  Shady alleged that his brother, Mohammed, used a false power of attorney document to….

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Guardianship, Powers Of Attorney and Guardianship Disputes

You Can’t Always Get What You Want, But … You Get What You Need

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In Poitras v. Canadian Cancer Society et. al., 2020 ONSC 4935 (CanLII), a  decision on a motion, the Estate Trustee/moving party sought an order setting the terms of a release so an interim distribution could be made. The responding party argued that an interim distribution could not be made until other issues were resolved and sought costs. Neither party was successful. Background Françoise Poitras died on March 6, 2016. Interestingly,….

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Contested wills, Estate Administration, Estate Litigation, Passing Of Trustees’ and Executors’ Accounts

More than a Suspicion: The Minimal Evidentiary Threshold

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A recent Ontario decision, Martin v. Martin [1], considered the minimal evidentiary threshold required to obtain documentary discovery in a will challenge as set out in Seepa v. Seepa.  For further background on Seepa, read Rebecca Studin’s previous blog post on that decision. In Martin, the Applicant (the named Estate Trustee) sought an order removing the Notice of Objection of the Respondent, his sister, to his appointment as Estate Trustee….

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Estate Litigation, Testamentary Capacity, Wills
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