Mediation is mandatory in any Estate litigation commenced in the city of Toronto, Ottawa or in the county of Essex. Motivation to settle is often fueled by tax considerations. As part of the settlement does it make sense for it to be allocated to the spouse or the children of…
There is an interesting piece in this week’s CJN. It is about the CLE B’Nai Brith Seminar on May 30, 2018, and features prominent accountants and lawyers who are presenters at this seminar. They are Clare Burns, Craig Vander Zee, Jonathan Hames, Jordan Atin, Melanie Yach, Nikolay Chserbinin and our own Brendan Donovan.
In this case the daughters of the deceased challenged their father’s will. He left the bulk of his estate to his common law wife. The daughters alleged that the common law wife exerted undue influence on their father and that coercion was the reason he changed his will.
One might expect that an attorney for property would have to pursue unpaid compensation that s/he may be entitled to within 2 years or the incapable person or his estate would a limitation period defence against the claim. Let’s see what the Court of Appeal for Ontario had to say on this issue in Armitage v. Salvation Army.
Arguably, Justice Koke’s decision to set aside the marriage of Kevin Hunt to Kathleen Anne Worrod has changed the test for determining the requisite capacity to marry. Before analyzing the case, let’s take a moment to review the law prior to the Ontario Superior Court decision in Hunt v. Worrod
The current system allows anyone who appears to have a financial interest in an estate to challenge a will for minimal costs by giving notice of their objection. All that is required is the filing of a one page document called a “notice of objection”. This is often a boiler plate document alleging that the will-maker did not have capacity, did not know or approve of the contents of a will or was unduly influenced. At this stage, no evidence has to be provided and the application for probate will be temporarily derailed.
It is said that there are two certainties in life: death and taxes. For those involved in litigation, there is a third: legal fees. Who should bear the often-exorbitant cost of these fees at the conclusion of litigation? Although legal costs have traditionally been paid out of the Estate, modern Ontario courts follow the “loser pays” rule in estates matters. A recent ruling from the Court of Appeal for Ontario[1. Welton Estate v. Haugrud, 2017 ONCA 831] demonstrates that the court has flexibility even when operating within this rule. Specifically, the court can apportion costs between the litigants in a way that respects the importance of giving effect to valid wills while also discouraging parties from taking unreasonable positions.
In Ontario a person is entitled to change his/her mind and revoke his/her will. There are a number of ways to revoke a Will. One such way is for the testator to burn, tear up or otherwise destroy it or by having some other person do so in his or her presence and by his or her direction with the intention of revoking the Will. But, sometimes there is no witness or proof that any such destruction took place. That begs the question - what happens if after the testator dies no one can find the Will and no one has knowledge that it was destroyed?
Experienced lawyers prepare for mediation by exploring how estate assets can be divided on a tax efficient basis. Why? Because as a general rule, the bigger the net amount of the estate the better chance at achieving a settlement as there is more money to divide between the litigants. Woe unto the lawyer who advises a client to accept a settlement without advising the net amount to be received after deduction of tax. That is why people who specialize in tax are often consulted prior to mediation.
As part of the Jewish High Holiday season, like many of my co-religionists I have gone through some introspection and wondered is there a case that defines me as a lawyer. Throughout my career I have had the opportunity to represent some very interesting clients and be involved is some very interesting cases. When I thought about it there were two very similar cases that came to mind.
In the ordinary course both the Estate Trustee and the Attorney for Property are entitled to be compensated for their work. What happens if they don’t follow the common law or statutory obligations that oblige an Estate Trustee or an Attorney for Property to keep proper accounts? What happens if they wrongfully take money or breach other obligations on them? Do they still get compensated or do they just get less money? Have the courts provided a clear red line that disentitles a trustee from receiving compensation?
While it may be difficult to avoid litigation, when an elderly parent prefers one child in their estate plan over others, the case law does provide some guidance for solicitors acting for clients.