All About Estates

Diane Vieira

Total 46 Posts Website
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Ontario Bar Association and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com More of Diane's blogs can be found at https://devrieslitigation.com/author/dvieira/

Is a Foster Child Entitled to Take Under an Intestacy?

In Estate of Sydney Monteith v. Monteith, the court declined to award a share of the Deceased’s estate to his foster sister. Sydney (the “Deceased”) died on March 16, 2022. He left no Will. He had no spouse or issue and was predeceased by both his adoptive parents. Pursuant to…

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Estate Trustees Ordered to Not Use Estate Assets to Fund Litigation

In a recent will challenge case, the court ruled that the estate trustees during litigation could not access estate funds to pay their legal fees. The testator (“Hans”) and his late wife (“Colleen”) married in 1987.  Together, they had 7 children from their previous marriages. In 2005, Hans and Colleen…

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Court Awards Punitive Damages Against a Former Estate Trustee

In a recent decision, the court awarded punitive damages against a former estate trustee who had ignored a number of court orders requiring her to account. In 2002, the estate trustee (“Lorali”) was appointed a co-estate trustee of her late mother’s estate (the “Deceased“). Subsequently, her co-estate trustee died in 2013,…

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What Happens to the Residue of an Estate when a Life Tenant Survives all other Beneficiaries?

In a recent British Columbia case, the court was asked to interpret the residue clause of a will. The testator’s wife held a life interest in the Estate’s property and was a beneficiary of an ongoing testamentary trust. However, both her stepchildren (and presumed receipients of the residue of the…

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General Revocation Clause in Will was Insufficient to Revoke Beneficiary Designations

In Alger v. Crumb, the Ontario Court of Appeal confirmed that a general revocation clause in a will did not revoke the testator’s TFSA and RRIF beneficiary designations. The Court concluded that under s. 51 and s. 52 of the Succession Law Reform Act (“SLRA”), the beneficiary designations have to be expressly…

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Intestacy and Removing an Estate Trustee

In Letourneau v Summers, the court examined the factors required to remove an estate trustee when there is an intestacy. The Applicant was the 82-year-old mother of the Deceased. She was the sole beneficiary of the Deceased’s Estate.  The Respondent was the Deceased’s brother and the Applicant’s son. The Respondent’s appointment…

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Children are not Chattels: Who Cares for a Child when a Primary Caregiver Dies?

In Marshall vs. Snow, the court was asked to determine who should be awarded primary custody of a minor child following the death of her mother (the child’s primary caregiver). Prior to the mother’s death, the child’s father and mother shared joint custody but not equal parenting time or decision-making rights…

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The Importance of Independent Witnesses in a Will Challenge

Di Nunzio vs Di Nunzio reminds us of the standard of evidence required in a will challenge. The testator made a new will in 2017 (the “2017 Will’).  The 2017 Will was made while the testator was in palliative care and she retained a new lawyer to assist her to…

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Passing of Accounts when the Grantor is Presumed Capable

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…

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The Court of Appeal Considers if an Application for Retroactive Support can be brought against an Estate

In Blacklock v. Tkacz, the Ontario Court of Appeal confirmed that pursuant to section 17 of the Divorce Act, an application cannot be brought to claim or vary a child support order against a deceased’s payor’s estate if the original support order does not explicitly bind the payor’s estate. The Appellant…

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