The matter of the payment of a party’s legal fees at the end of a hard fought court battle can hold up or impact upon settlement. Indeed, oftentimes, the issue of the costs of litigation becomes a subject in and of itself to be argued over in court. Generally, the…
The question of who will bear the costs of a proceeding at the end of the day is often hotly debated, but the matter may be more complex in cases where the litigation concerns the guardianship of, or issues relating to, an incapable individual. The court in Fiacco v. Lombardi…
Power of attorney and guardianship disputes are fairly common in the estate litigation world. Oftentimes, siblings proceed to court as a result of allegations of financial abuse or a failure to look after the health and care of an incapable parent, in accordance with what is required of an attorney…
The Ontario Court of Appeal (“ONCA”) decision in Gefen Estate v. Gefen is an interesting read which provides insight into a variety of topics including mutual wills and mutual will agreements, secret trusts, the doctrine of unconscionable procurement, and more! By way of background, Elias and Henia Gefen were married…
In disputes relating to the guardianship of an incapable person, the subject of their representation often arises. The appointment of counsel pursuant to section 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“section 3 counsel”) is often treated as akin to or even the same as the…
The recent case of Lepp v. The Municipality of York, 2022 ONSC 6978 (CanLII) (“Lepp”) is now considered to be a form of required reading for litigants and their counsel. While the facts of the case are not particularly unique, the court’s comments on lawyers’ compliance with the Notice to…
Generally speaking, the beneficiary of an estate has the right to compel an estate trustee to commence an application to pass the estate accounts, which process is to be carried out in accordance with Rules 74.16-75.18 of the Ontario Rules of Civil Procedure. As with any litigation, the question of…
A Registered Education Savings Plan (“RESP”) is a cost-effective way of saving money for a child’s future post-secondary education. The concept of the RESP raises the question of who actually owns the funds therein. Is it the parent who contributes to the RESP (the “subscriber”) or the child for whom…
he recent case of Re Assaly deals with a unique intersection between estates and bankruptcy law and squarely addresses the law of assent. In this case, the estate trustee paid funds in trust to counsel for a bankrupt beneficiary and adult child of the deceased (the “Bankrupt”), on the condition…
As many well know, issues relating to testamentary capacity are often at the forefront of estate litigation cases and in particular, will challenges. Drafting solicitors may opt to obtain a contemporaneous capacity assessment before their clients execute a last will and testament; this may be the case where the testator…
