All About Estates

Category: Capacity Law

Total 73 Posts

Some Thoughts on Explaining Differences in Expert Opinions

Experts giving evidence in an Ontario court are obliged to sign an acknowledgement that they are independent, with their obligation being to the court and not to the party who retained them. Nonetheless, scepticism regarding objectiveness and discrepancies between expert opinions remains, as demonstrated in the reasons of Justice Mesbur…

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When is a Gift not a Gift?

Styres v. Martin 2018 ONCA 956 is a case of a gift that unfolded a saga (not over yet and far from it) of diminished capacity, alleged breach of trust, breach of fiduciary duty, unjust enrichment, undue influence to name a few. Mr. Styres lived in a house he built…

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Some Suggestions on Evaluating Undue Influence in the Court of Public Opinion

In recent weeks, Canadian politics has been rocked by the so-called “SNC-Lavalin Scandal.” One of the allegations has been whether former Attorney General Jody Wilson-Raybould was pressured or unduly influenced by the Prime Minister’s Office to resolve the corruption and fraud case against SNC-Lavalin in an effort to spare the…

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Understanding the Role of Section 3 Counsel

The recent case of Sylvester v. Britton, 2018 ONSC 6620 (“Sylvester”) provides an excellent review of the law regarding incapacity, attorneys for property and personal care, capacity assessments, and other issues which often arise in estate/capacity litigation cases. While the decision addresses many interesting points, this blog will focus upon…

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Estate Applied to Have Filings Made by Taxpayer Lacking Mental Capacity Set Aside

In Ntakos Estate v. The Queen, 2018 TCC 224, a family business was owned by the deceased taxpayer, Anna (after her husband passed away in 1995) with two brothers-in-law through a holding corporation. Anna’s mental and physical health declined from 1995 until her death in 2004. She was diagnosed in…

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Lucid Intervals and Testamentary Capacity

As I understand, “lucid interval” is a legal doctrine that holds that testamentary capacity may exist at a moment in time even though the testator’s general state would be inconsistent with the conclusion that he possessed testamentary capacity.[i] The idea is that an individual who suffers from mental illness or…

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Year End Wishes for Changes to Care for Patients with Dementia

Health Quality Ontario, in collaboration with clinical experts, patients, residents, and caregivers across the province, is developing quality standards for care providers in Ontario. I participated in developing the quality standard: Behavioural Symptoms of Dementia: Care for Patients in Hospitals and Residents in Long-Term Care Homes. This quality standard focuses…

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Statutory Guardianship of Property vs. a Continuing Power of Attorney for Property: They are not the same!

My June 2017 blog described that most seniors appoint a continuing power of attorney for property (CPOAP), partly to avoid having the Office of the Public Guardian and Trustee (OPG&T) assume the role of statutory guardian of property under the Substitute Decisions Act (SDA) or the Mental Health Act (MHA)…

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Buffy the Vampire (Slayer Rule)

Halloween is right around the corner, so today’s blog post is taking an ominous turn. Informal Reader Poll: What’s scarier? a) A horror movie that’s been remade three times b) Having to remake a client’s will for the third time Now to the fun stuff….. There’s a general principle in…

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Undue Influence by “Unwitting Proxy”

Undue influence results in benefits to a beneficiary/donee which would not have occurred except for the undue influence imposed by the beneficiary/donee upon the testator/donor. Undue influence can be conceptualized into two distinct types: (1) “actual” undue influence and (2) “presumed” undue influence. Actual undue influence is concerned with coercive…

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