All About Estates

Category: Estate Litigation

Total 320 Posts

How much security is enough?

With real estate prices soaring, it’s no surprise that property is often at the heart of estate litigation. Certificates of pending litigation (CPLs) are a common tool used to ensure that a disputed property is not sold before the litigation is resolved. If the parties agree to remove a CPL…

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Testamentary Capacity and Expert Reports

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…

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A CAREER IN WILLS AND ESTATES – COULD IT BE FOR YOU?

This blog has been written by Sandra Arsenault, Law Clerk at Fasken LLP As our fellow blog writer, Audrey Miller wrote earlier this week (here), new Census data indicates that the number of seniors over age 85 is expected to triple in the next 25 years. Could this be an…

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Probate Forms are Changing…Again

Today’s blog was written by Yvonne Mazurak, Associate, at Fasken LLP As my colleagues, Sandra Arsenault and Betty Laidlaw, have both described in posts earlier this year, Ontario Regulation 709/21 introduced significant changes to the probate procedure. Among the changes, which came into effect on January 1, 2022, was the…

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Capacity to Consent to MAiD: A Suggestion For Amendment

I have found it uncommon for a family member or beneficiary to exert undue influence to pressure a patient to pursue MAiD. What worries me is the vulnerability of patients to undue influence from physicians who may embrace therapeutic nihilism and bias patients unduly towards MAiD. I suggest that, for capacity to consent to MAiD, the test of “ability to appreciate” should be expanded to require an appreciation of the views and wishes of supportive family members and friends.

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Evidence of Contempt – More than Hearsay

If alleging contempt, more than hearsay evidence is required.

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When Does a Class of Beneficiaries Close?

“To my grandchildren…” Sometimes, a testator will leave testamentary gifts to an undefined class of people, rather than to beneficiaries by name. Gifts might be left to “my children” or “my grandchildren” or even “the children of my niece” without any further specifications in the will[1]. This practice raises a…

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How A Rumoured Las Vegas Wedding To A Russian Child Star Shook Up An Intestacy

The background to the unopposed motion was lurid: a prominent lawyer cut down before her time and a last-minute Las Vegas marriage to a former Russian child star. In Estate of Tanya Claudia Davies, 2022 ONSC 2009, the court stayed an application for a certificate of appointment of estate trustee…

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Walters v. Walters: Limits to “Absolute Discretion” and Judicial Intervention by: Yvonne Mazurak

A recent Court of Appeal decision, Walters v Walters, 2022 ONCA 38, addresses a trustee’s requirement to give effect to a testator or settlor’s intentions when exercising discretion with respect to distributions from a discretionary trust. At issue was whether the trustees had improperly relied on extraneous or irrelevant factors…

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Has a Contingent Beneficiary Asked for an Accounting?

An estate trustee does not have an obligation to provide a contingent beneficiary with an accounting; nonetheless, some form of accounting is generally done at the request of a contingent beneficiary. If accounts are not provided, a contingent beneficiary may bring an application to compel an estate trustee to pass…

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