Lora and Jeffrey started living together. As their 23 month relationship grew stronger Jeffrey promised Lora that when he died Lora would get his RRSPs worth about $1,750,000 as long as they were still living together. Jeffrey insisted that Lora sign a cohabitation agreement before he would keep his promise. …
It has been 18 years since the Court of Appeal for Ontario decided Stone v. Stone. In this case the Court characterized inter vivos gifts from a father to his adult children as a fraudulent conveyance because the gifts were intended to thwart a spouse’s entitlement under the Family Law Act. Let’s see how courts have applied this seminal case.
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.
As regular readers of this column undoubtedly know there is a seminar set for June 5, 2012. For this column, I want to focus on one aspect of the seminar, organized by B’nai Brith Canada’s Estates and Trusts, Lawyers Division, that deals with the moral obligation of parents in their testamentary planning to include children as beneficiaries.
The average person goes to a lawyer because they just feel they were treated unfairly. I read a case recently and thought long and hard about how the plaintiff, Mary Simonin, must have felt. Her lawyer could not go to court and just say Mary was treated inappropriately. We lawyers must apply the facts to legal doctrines and theories. We rely on older cases to show that in similar circumstances the courts have granted damages to our clients. So let’s go through the facts of this case, see why Mary felt she was treated unjustly, and look how the courts applied the law to her situation.
A young man was living with his elderly aunt. She promised that if he would be good to her, she would leave her house to him and take care of him in her will. The nephew did odd jobs around the house, drove his aunt around town and to different cities. He honoured his aunt's request, but she did not keep her word and left him noting in her Will. The Supreme Court of Canada determined that this was not an issue of enforcing a contract. It was an issue of fairness. In cases like these, the Courts have to determine if it would be inequitable to allow the promisor to keep everything while the other party provided the service. In this case, the Court found that the Aunt was unjustly enriched and it gave the nephew an award commensurate with the value of the services he provided.
Situations arise where legal title may be in one person's name, but the courts presume there was a decision to create a trust so that the equitable or beneficial ownership really belongs to another. Let's take a look at the recent British Colombia Supreme Court case of Borkenhagen v. Kessler.
At common law the proposition that a testator has testamentary freedom is foundational. Yet over time, Ontario’s courts and legislature have recognized that a testator has certain obligations that may trump that freedom. For example, the courts have used legal mechanisms like constructive trusts to protect disinherited spouses. The legislature has also passed laws that provide disinherited spouses with a division of net family property, as well as dependants, like children and common law spouses, with rights to receive support if they were not adequately provided for in the will. A question this seminar is raising is where to draw that line on the restriction of testamentary freedom. Will an Ontario court vary a will when a parent disinherits an adult child? The courts in British Columbia have.
The average person goes to a lawyer because they just feel they were treated unfairly. I read a case recently and thought long and hard about how the plaintiff, Mary, must have felt. Her lawyer could not go to court and just say Mary was treated inappropriately. We lawyers must apply the facts to legal doctrines and theories. We rely on older cases to show that in similar circumstances the courts have granted damages to our clients. So let’s go through the facts of this case, see why Mary felt she was treated unjustly, and look how the courts applied the law to her situation.
The Zimmerman v. McMichael Estate 2010 CarswellOnt 3481, 2010 ONSC 2947, 57 E.T.R. (3d) 101, 103 O.R. (3d) 25 is instructive for those reviewing the Ontario law regarding the duty of an attorney for property to account, the extent of that fiduciary duty and the consequences for failing to account.