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abc of will challenges

The ABCs of a Will Challenge

“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.
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Challenging the Wills of the Living

The traditional rule in Ontario is that one cannot challenge a will while the testator is still alive. However, in recent years, there have been some cases in which judges have expressed a willingness to adjudicate upon the validity of a will prior to the testator’s death. These cases might be mere anomalies or they might be signs that the general rule is weakening.
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inheritance money fight

Abrams v. Abrams & Capacity Assessments

Once a parent is declared incapable, the children can, under the right circumstances, be appointed guardians of their parents’ property. Judges recognize that a person who is genuinely incapable might need a guardian, but judges are also reluctant to order that a person undergo a capacity assessment when that person is unwilling. After all, a capacity assessment can be seen as an intrusive and demeaning exercise. A perfect example of this type of fight happened in the case of Ida and Philip Abrams.
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Limitation Period Cheat Sheet

This cheat sheet is intended as a quick reference guide for estate litigators dealing with limitation periods. For a comprehensive review of this topic I refer the reader to articles written by senior members of the bar I have found very useful which I believe are worthwhile to review.
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Capacity in the Estate Context

I was invited to speak at a Law Society of Ontario CLE seminar that took place on October 30, 2012. It featured many people who I consider some of the best practioners in this area. My paper analyzed whether Justice Cullity, in Banton v. Banton, expanded the test on insane delusions. At the actual presentation, Jordan Atin, the Chair of the program, asked Ian Hull and me to address a potpourri of issues. My topics included capacity, undue influence, managing client expectations, and evidence in the context of estate disputes. Ian Hull spoke on strategy in estate litigation among other topics. At the conclusion of the seminar I received a number of requests to provide my notes or something more formal to those who enjoyed the presentation. They felt the time was short and wanted specifics of some of the source material I referred to for use in their practice. This blog is, in part, a response to those requests and provides a review and sources for my comments on capacity and undue influence.
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To Adeem or not to Adeem

Mum was scared. The confusion when she paid her bills, mixing up her medications and failure to remember when to renew her GICs prompted her to grant her son Sam power of attorney over both her property and personal care. Sam was now authorized to make decisions regarding Mum's financial affairs and personal care related to issues like housing and health care.
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Where there is life, there is hope

When should hospitals take away a person's right to make end-of-life decisions? This topic is once again in the news as Moe Maraachli and Sana Nader are at odds with the London Health Sciences Centre. The parents want their terminally ill child discharged from the hospital to die at home. The hospital refused. The parents lost at the Health Care Consent Board and lost their appeal in court. Without commenting on this very sad case it once again raises the issue of who has the right to make life-ending decisions for people who are not capable of making those decisions. Should it be the parents of a child or the hospital? If an adult has signed a power of attorney for personal care should the attorney for personal care or the doctor decide?
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Estate Litigation Often Starts With These Questions

Did the Testator have capacity to make a will? Did the Grantor have capacity to grant a power of attorney? Courts look to a number of factors to answer these questions. There are a number of excellent articles and textbooks that address the tests and difficulties in litigating capacity. Addressing those issues is beyond the scope of this paper. The purpose of this article is to address the utility of a retrospective capacity assessment in the face of apparently overwhelming contemporary medical opinion evidence that opines that the person in question had capacity.
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