Commercial and Estate Litigation Blog
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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corporate records

Shareholders’ Rights To Corporate Records

One of the first things to happen when the relationship between a minority shareholder and the majority goes bad is that the minority is often denied information about the business. This may include being denied access to corporate records that are essential for any shareholder to know what is going on in their company.It is very common in oppression cases for a minority shareholder to be, or claim, that he or she has been “excluded” from the business. Being cut-off from corporate information can certainly be a form of exclusion. When the minority shareholder is not part of management, or has been excluded from management, the lack of information concerning the business can leave the shareholder completely in the dark about what is happening at the business and how it is performing financially. This is untenable for someone who has an ownership stake in the business – it is also contrary to the law.

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promises after death

Can Promises Be Enforceable After Death?

In Canadian law there is a legal doctrine called “proprietary estoppel”. This doctrine will arise where the owner of land, let’s call him Albert, leads another person, Barbara, to believe that they will enjoy a benefit over Albert’s property, and in reliance on that belief, Barbara acts to her detriment to the knowledge of Albert, and Albert takes advantage of Barbara by denying Barbara the benefit at stake. While the concept may appear confusing at first, the Ontario Superior Court provides a clear illustration of how the doctrine works in Love v. Schumacher.

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frozen asset

Estate Freeze Litigation Concerns

if you ask the typical accountant about an estate freeze, he or she will tell you that smart people who are in a growth business are well advised to consider an estate freeze in order to defer taxes. In an estate freeze, the owner of the business will take steps to freeze the value of that business today and ensure that the future growth (and any capital gains on it) passes on to the next generation. Arguably, if properly implemented, by taking these steps the present owner can maintain control of the business while deferring the capital gains tax which would otherwise be paid upon the death of the owner on the increase in value. That may be how tax planners see an estate freeze, but there is another side to this question.

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financial statements

Financial Statements – Are Accountants liable to third parties for mistakes?

Lara Khoury, a lecturer at the Faculty of Law, McGill University, observed that “…the accounting profession has evolved greatly. Modern accountants, once only bookkeepers, have gradually been attributed a large range of responsibilities. They now not only prepare, investigate, and audit accounts, but also perform important advisory, reporting, investigatory, regulatory, and administrative functions. This new diversity in their functions exposes them to a greater risk of liability towards a larger range of people”.

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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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