Commercial and Estate Litigation Blog
retracting disclaimer of gift

Retraction of Gift Disclaimer – There’s a Ketch

The Superior Court decision in Rubner v. Bistricer quoted from earlier case law and texts stating that: ““The law certainly is not so absurd as to force a man to take an estate against his will.” There is no authority to the effect that the disclaimer must take place in a court of record; it may be made by deed, or even by conduct. Prima facie, the disclaimer operates from the time of the testator's death and makes the gift void for certain purposes ab initio.” So we know that people can say no to a bequest - but what if they change their mind?
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dnr order

Are Doctors above the Law?  The case of Wawrzyniak v. Livingstone

In the Wawrzyniak decision, the elderly patient was suffering from numerous illnesses including gangrene. Both his legs were amputated above the knee. The patient’s daughter, his attorney for personal care, was also a nurse. It was clear to everyone involved that both the patient and the attorney for personal care wanted CPR to be administered in the case of a cardiac or respiratory arrest. But it didn’t happen. Why not?
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Case Conference for Capacity Assessment

The Case Conference: A Powerful Tool For Efficiency in Guardianship Applications

When an application, including an application for guardianship of an incapable person’s care and property, is brought, there are several steps that need to be taken before the application can be heard and decided by a judge. These steps include filing of application materials, cross-examinations, potentially mediation, the appointment of a neutral lawyer to protect the interests of the person whose capacity is in issue,  and preparation of written arguments. Motions may also need to be brought along the way to compel production of documents, stop inappropriate conduct, etc. These steps can be time consuming.
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joint tenant common

Joint Tenancies, Spouses and Estates

Can a person sever a joint tenancy and thereby disentitle a spouse from receiving half of the matrimonial home by right of survivorship?  The answer is maybe. The starting point for our discussion is Part II of the Family Law Act (“FLA”).
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Do the Designated Beneficiaries of the RRSP Pay The Tax?

Mediating estate disputes often involves determining who gets proceeds from the deceased’s registered retirement savings plan or registered retirement income fund (“RRSP/RRIF”), and who pays the taxes on that RRSP/RRIF. A key factor during the negotiations at mediation is how a judge would decide this issue were the matter to come before a court. In other words, what does the law say?
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owners manual power of attorney

Powers of Attorney – where is the owner’s manual?

Usually, lawyers who draft wills for their clients also prepare a power of attorney for property and personal care. These documents allow the client to choose who makes financial decisions or personal care decisions should the client become incapable. The person whose property is being managed and who signs the power of attorney is called the grantor. The person who is appointed to manage the property or make decisions about personal care (referred to, respectively, as the attorney for property or attorney for personal care) sometimes only sees the document after the grantor becomes incapable. Problems often arise because the attorney does not know what the responsibilities and duties are. If only the document came with an instruction booklet.
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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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