All About Estates

Month: December 2016

Total 17 Posts

When is a Settlement Considered Binding and Enforceable?

In the recent decision of Prince v Nytschyk Estate, 2016 ONSC 7459, the Ontario Superior Court of Justice enforced a settlement despite the lack of signed minutes of settlement at the time of death of one of the parties. In this case, Cherie Lewicki (“Cherie”) and Joseph Nytschyk (“Joseph”) were in a common-law relationship for about 15 years, during which time they lived together in a house in Joseph’s name alone. Joseph died intestate (without a Will) in 2013 and Cherie continued to live in the house until her death in 2015. Before her death, Cherie commenced a claim for dependent’s relief against Joseph’s estate. As part of her claim, Cherie sought a declaration that the house was held in trust for her based on a resulting or constructive trust. With the estate’s potentially significant exposure to a dependant’s support claim, the parties agreed to a settlement whereby the house would be transferred to Cherie. However, prior to the completion of any signed minutes of settlement, Cherie unexpectedly died.

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Bittersweet Holidays

In another few days we will say goodbye to 2016 and hello to 2017. This time of year for me, is a time of reflection. Most jarringly- is wondering where did the time go? While I try to be in the present, I am not always successful. What seems to…

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Videographers Beware

Occasionally, those hoping to demonstrate the capacity of a testator will film a video of the testator purporting to show that they were cognitively intact or that the will was a reflection of their independent and capable wishes. Unfortunately, the naïve interviewer makes the mistake of confusing the preservation of social graces…

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An interesting case has begun in the state of Louisiana involving “Modern Family” actress Sofia Vergara. For the past year, Ms. Vergara has been battling her former husband for custody of her fertilized eggs. The proceedings took a complicated turn this month when her husband filed an action on behalf of the embryos, arguing that the frozen embryos have a right to life. As the action suggests, the husband would like to take steps to unfreeze the embryos and bring them to term. In the proceedings, he argues on behalf of the embryos that keeping them frozen, which Ms. Vergara allegedly wishes to do, would be “tantamount to killing them”.

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Holiday Jingle

T’was the fight before Christmas, when all families know,
It’s better to forgive than tell them to F. O.,
Mom probably liked you better, if memory serves,
So while I am a P.O.A., she will get what she deserves.

My holiday jingle with a new stanza added,
Please enjoy as intended, with a wink and a smile 🙂

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End of Life Decisions: A Legal Perspective

End of life decisions are some of the most fraught decisions individuals will ever face. Patients and doctors likely approach end of life decisions differently and from differing perspectives.  The Law Commission of Ontario (“LCO”), an independent organization that recommends law reform measures for the province, has produced two reports…

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Taxable Income of an Estate: Can it be Distributed?

Suppose a straightforward will with very simple instructions to the executor: The executor is to pay the debts and expenses of the deceased, execute certain specific bequests of property and with some general instructions, distribute the residue of the estate to the named beneficiaries. During the administration of an estate,…

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In my first blog on multiple wills, I briefly discussed the rationale for using multiple wills as a tool for managing estate administration tax and then turned to drafting considerations, specifically the introductory clause and the revocation clause. In this blog I will focus on provisions where there is potential for an unintended double payment.

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Looking back and planning ahead

While we are all busy with holiday parties and purchases, please remember that spending wisely today and planning ahead for our later years are related.

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The Case of the $30,000 Scrapbooks

In what the judge referred to as a “noble gesture”, the deceased ordered that his two scrapbooks setting out his life story be copied and distributed to his family. These instructions were set out in a Codicil to his Will. However, disagreement amongst family members regarding the copying of the…

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