Commercial and Estate Litigation Blog
revoke will

Lost Wills and the Presumption of Revocation

In Ontario a person is entitled to change his/her mind and revoke his/her will. There are a number of ways to revoke a Will. One such way is for the testator to burn, tear up or otherwise destroy it or by having some other person do so in his or her presence and by his or her direction with the intention of revoking the Will. But, sometimes there is no witness or proof that any such destruction took place. That begs the question - what happens if after the testator dies no one can find the Will and no one has knowledge that it was destroyed?

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Mediation and the Deemed Disposition

Experienced lawyers prepare for mediation by exploring how estate assets can be divided on a tax efficient basis. Why? Because as a general rule, the bigger the net amount of the estate the better chance at achieving a settlement as there is more money to divide between the litigants. Woe unto the lawyer who advises a client to accept a settlement without advising the net amount to be received after deduction of tax. That is why people who specialize in tax are often consulted prior to mediation.

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jewish cemetery

Reburial in a Jewish Cemetery

As part of the Jewish High Holiday season, like many of my co-religionists I have gone through some introspection and wondered is there a case that defines me as a lawyer. Throughout my career I have had the opportunity to represent some very interesting clients and be involved is some very interesting cases. When I thought about it there were two very similar cases that came to mind.

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estate trustee fees

When is a Trustee Disentitled to Compensation?

In the ordinary course both the Estate Trustee and the Attorney for Property are entitled to be compensated for their work. What happens if they don’t follow the common law or statutory obligations that oblige an Estate Trustee or an Attorney for Property to keep proper accounts? What happens if they wrongfully take money or breach other obligations on them? Do they still get compensated or do they just get less money? Have the courts provided a clear red line that disentitles a trustee from receiving compensation?

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Tax Planning and Estate Law

A tax trap in mediation – the foreign joint tenant

Mediation is mandatory in any Estate litigation commenced in the city of Toronto, Ottawa or in the county of Essex. Motivation to settle is often fueled by tax considerations. As part of the settlement does it make sense for it to be allocated to the spouse or the children of the deceased? Often, there is an argument about ownership of a joint account. The surviving joint account holder claims that the deceased intended that the surviving joint account holder would receive the monies by right of survivorship. The other beneficiaries to the estate generally claim that there is a presumption…

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senior abuse

The Court of Appeal’s comments on undue influence in the context of a power of attorney dispute

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.

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forced-sale

Can you compel an executor to sell?

A parent dies and the adult children become equal beneficiaries of the residue of the parent’s Estate.The Estate is primarily made up of income producing real estate holdings that remain profitable. Some of the siblings want to continue to operate the properties, while other siblings want the properties to be sold and converted to money to be distributed to the beneficiaries. Does a beneficiary have the right to force an executor to sell real property that forms part of the Estate?

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