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.
In this case, the children were fortunate that the judge found that the father’s residence was really held in trust for the children so it did not form part of the estate. Muna did not get much money. This time the children were lucky. Unfortunately, that is not always the case.
The author reviews Ontario’s laws of inheritance in the context of second marriages. He addresses the risk to implementing a person's testamentary intentions. For example, in Ontario, under certain circumstances a new marriage revokes previous wills, the failure to provide full and frank disclosure may invalidate a domestic contract and a court may still order a deceased’s estate to pay support to a dependant regardless of any agreement made to the contrary.
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 fifth episode of the new Global TV series “Family Law” deals with family members who go to court to fight about who should be the attorney for personal care of Helen, the family matriarch. Helen suffers from Alzherimers. She resides in an assisted living facility and has struck up a sexual relationship with another resident. Helen’s husband, Ira, is fighting to stop the romantic relationship, for obvious reasons. Helen’s daughter wants her mother to be happy and therefore thinks she should be entitled to continue with her affair.
In this video, lawyers discuss the factors judges consider when children seek court orders to compel a parent to have their capacity assessed. This issue arose in Abrams v Abrams and the lawyers talk about how the court dealt with the issue and what people need to consider when pursuing this type of litigation.
This is the second blog we have written about the Court of Appeal for Ontario’s decision in Vanier. The first blog dealt with the court’s comments regarding the propriety of capacity assessors opining on whether undue influence was exerted on the deceased. This blog will deal with undue influence in the context of a power of attorney dispute.
The Court of Appeal for Ontario’s decision in Vanier is a worthwhile read for lawyers who are dealing with the question of undue influence in the context of a power of attorney dispute. Many interesting issues were addressed including the appropriate test for undue influence, the onus of proof, and the applicability of the doctrine of suspicious circumstances.
In my research I came across the case of Douglas DeGuerre. His daughter, Joy Wawrzyniak, was the power of attorney for personal care. She wanted a full response including CPR in case of a heart attack. The doctors ignored her directions. Instead, they placed a do-not-resuscitate (DNR) note on DeGuerre’s file because the doctors felt that medical intervention would only prolong his suffering. The doctors did not tell the daughter about the change and felt they were not obliged under the Sunnybrook policy. Mr. DeGuerre passed away and the legal proceedings started. As reported in various newspapers and case law, the family complained to the College and lost. They appealed to Ontario’s health Professions Appeal and Review Board. Notwithstanding the fact that the Board and later on the College and disciplinary board rebuking them, the doctors were unrepentant. The family launched a law suit seeking $1,000,000 in damages. The trial is pending. I empathize with the family. Let me tell you why.
“Unfairness” is the motivation many clients cite when they complain about a will. Unfortunately, unfairness is not a good enough reason for a judge to set aside a will. So what is a good reason? First, to make things a little easier, let’s introduce a key term when discussing wills. The person who makes a will is called a testator.