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Estate Executor

Appointing an ETDL without a will challenge

Section 28 of the Estates Act provides the court with jurisdiction to appoint an ETDL in the context of a Will Challenge or removal of an executor. Arguably, based on the cases reviewed herein, for those matters outside the parameters of s. 28 of the Estates Act the Courts may rely on subrule 75.06 (3)(f). The tests for exercising that discretion are set out in in Kalman v. Pick and McColl v. McColl. When the conduct of the estate trustee is endangering the administration of the Estate the court will exercise its discretion to appoint an ETDL to ensure the transparent and orderly administration of the estate.
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Do you really want to be an executor?

As the person managing the administration of the estate, executors are often the most readily available target for disgruntled or disinherited beneficiaries. If the risk is not effectively managed, serving as an executor can entangle you in costly litigation.If you are named as an executor in a will, it is important to consider the implications of acting as an executor before you take any steps to administer an estate. Also, keep in mind that the role of executor becomes complicated when parties dispute which is the valid last will and testament. Such was the case in Dueck.
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When is an Estate Trustee Obligated to Make an Interim Distribution?

Upon someone’s demise a personal representative is appointed. That appointment may come about through a testamentary document or by court order if there is an intestacy. The personal representative has two roles. He or she is responsible for collecting all the assets and paying the liabilities of the deceased. Thereafter, he/she must distribute the estate in accordance with the terms of the will, or if applicable, the laws of intestacy, or, if elected by the surviving spouse, under the entitlement provisions found in section 5 of the Family Law Act.
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Distribution of estate by an Estate Trustee During Litigation

Is it appropriate for a court order to permit an Estate Trustee During Litigation (“ETDL”) to distribute the Estate? Possibly. The statutory authority to appoint the ETDL is found in Section 28 of the Estates Act, which provides that an ETDL has all the rights and powers of a general administrator, other than the right of distributing the residue of the property. Generally, an ETDL is appointed when the court feels a neutral third party should be administering an estate to preserve estate assets.
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The Unseen Risk to Personal Injury Victims

The recent Ontario case of Timbers Estate v. Bank of Nova Scotia illustrates the vulnerability of those who are victims of a catastrophic injury. Jeffrey Timbers was in a car accident in 1993 and remained in a coma until his death in 2005. Who negotiates for someone like him? Who hires the personal injury lawyer or gives the lawyer instructions? When there is a settlement, who manages the money received?
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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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