Commercial and Estate Litigation Blog
joint tenancy

Retroactively Rectifying Title Pursuant to Section 160 of the Land Titles Act

After someone passes away, the estate trustee will often apply for a certificate of appointment of estate trustee. While it is not technically mandatory to apply for the certificate of appointment in order to administer the estate, it is often a practical requirement in order to deal with certain types of assets. Applying for the certificate triggers the requirement to pay estate administration tax on the assets of the Estate. Even where it will be practically necessary for the estate trustee to apply for the certificate in order to administer the estate, there are certain ways you can structure your affairs to minimize the estate administration tax that will be payable.
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trustee compensation

Compensation for Acting as Guardian for Personal Care/Attorney for Personal Care

There is a curious quirk in the Substitute Decisions Act: while the Act explicitly permits a guardian of property appointed under a Power of Attorney for Property to take compensation for their services, there is no equivalent provision permitting Guardians of the Person appointed under a Power of Attorney for Personal Care to take compensation. An obvious question therefore arises: are guardians of the person entitled to take compensation for their services? And if so, how much?
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mistake in calculation

Can a trustee recover funds from a beneficiary where the trustee makes an overpayment by mistake?

The administration of the estate can take time and often the assets and liabilities will be known and the amount available for distribution can be estimated. Accordingly, personal representatives will oftentimes make an interim distribution from the estate to the beneficiaries leaving a holdback amount to cover any anticipated liabilities and expenses. In some cases, the personal representative’s estimates can be incorrect or there’s a liability that the personal representative failed to take into account. Meaning, the personal representative may have mistakenly made an overpayment to the beneficiaries.
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Court Costs

Discontinuing an action/abandoning an application – presumptive rules on costs

A civil action can be ended by the plaintiff by filing a notice of discontinuance. An applicant can end an application by filing a notice of abandonment. The steps can be taken by a plaintiff or applicant at any time. However, anyone who has been served with the claim or application, and who has responded to it, can ask the court to award them costs as compensation for the costs they incurred in responding to the proceeding.
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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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Certificate of Pending Litigation

Is Seeking A Certificate of Pending Litigation Without Notice Worth The Risk?

Justice Kurz’s recent decision, McNeil v. Kaloustian, highlights some of the risks associated with obtaining a Certificate of Pending Litigation (commonly known as a “CPL”) without notice. A CPL is a document registered on title to a property to provide a notice and warning to the public that the property is subject to a court dispute. Registering a CPL has the practical effect of restraining all dealings with the property (financing, mortgaging, sale, etc.).
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