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renunciation of trustee

Can a Named Estate Trustee Renounce Their Position Prior to The Death of the Testator?

An application to remove an estate trustee is often brought when there is significant acrimony in the administration of an estate stemming from the actions, perceived or real, of the trustee. However, if the named trustee is willing to give up the position on consent, simply substituting a different trustee can often reduce tensions and avoid costly litigation. Renunciation is “[t]he formal act whereby an executor entitled to a grant of probate (or person having the right to a grant of administration) renounces such right”.
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end of life

Do Religious Patients’ End of Life Wishes Bind Medical Decision-makers?

There have been developments in recent cases that impact the question of how best to safeguard the choices of people of faith with respect to “end of life” decision-making. The purpose of this blog is to review those cases and provide some insight about how best to ensure faith-based wishes are respected and followed by medical professionals, tribunals and the Court.
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missing will

Applications to Prove a Copy of the Will

An application for a certificate of appointment of an estate trustee with a Will (i.e. a probate application) ought to be accompanied by the Original Will. What happens if the original of a Will cannot be found after the death of the Testator?
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Search for Beneficiary of Will

Ascertaining Beneficiaries: More Than Just a Facebook Search

You are the estate trustee of a deceased person’s estate, but after conducting an exhaustive search, you cannot locate all of the beneficiaries of the estate, or you are worried that other beneficiaries within a specific class may exist. This situation is not uncommon, and it appears to be more prevalent where the deceased emigrated from a foreign country and left family behind, and where the deceased died without a valid Will or there was poor succession planning.
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what is a holograph will?

What’s a Holograph Will?

It was 1948 and this wheat farmer got off his tractor and by mistake put it in reverse.  It moved backward and trapped the poor guy catching one of his legs under the rear wheel of the tractor. He had enough freedom of movement to move his arms and hands, but could not reach the controls. His wife finally discovered him, but by the time she got him to the hospital his injuries overtook him and he died. When they examined the tractor the next day they discovered that the farmer scratched the following on the fender, “In case I die in this mess, I leave all to the wife. Cecil Geo. Harris.” This incident took place in Saskatchewan. The court accepted the writing on the fender as a holographic will.  What would have happened if it took place in Ontario today?
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estate law mediation

Winning the Mediation in Estate Litigation

The vast majority of lawyers and mediators in the field appear to believe that mediation leads to more cases settling faster at a lower cost. Mandatory mediation was introduced in Ontario on a test basis on January 4, 1999.  In part, based on an independent 23-month evaluation of the pilot project, it became permanent. The results of that evaluation are set out in the Hann Report.  It suggests that mandatory mediation results in 40% of cases being completely settled earlier in the litigation process. This raises questions about the nature of the cases that are still going to trial.
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who gets fees

The Executor’s Fee – Payment to the Lawyer or the Law Firm?

Imagine this scenario: Larry the Lawyer works for a large law firm. For ease of reference let’s call the law firm LLF. The clients love Larry. One such client - let’s call him Clint the Client - was so impressed with him that he appointed Larry the Lawyer as his sole executor. Clint the Client is worth about $200,000,000. Using the tariff as a guide, the executor fees might be as much as $10 million. So does Larry the Lawyer or his firm LLF become entitled to the executor fees?
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capacity assessment

Practical Strategies and Best Practices For Drafting Solicitors in Assessing Testamentary Capacity

Solicitors working with clients to draft Wills and create estate plans are in an optimal position to deal with anticipated probate litigation. This blog will set out the law on testamentary capacity and techniques to create and preserve evidence to fend off challenges. Also discussed are the implications of a lawyer’s duty to a client when receiving instructions and conducting assessments.
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definition of child

What is a “child”?

What is a child? In everyday life, this is an innocuous question with a simple answer – you kind of know one when you see one. Whether you’re going to the movies, dining at a buffet, or riding the subway, what most people consider to be a “child” is clear, give or take a couple of years.
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