Commercial and Estate Litigation Blog

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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Estate Litigation

Interpreting a Will: Small Details, Large Consequences

Sometimes, people in second marriages who make wills balance two loyalties. On the one hand there are the children of the first marriage. On the other hand there is the new spouse. The road often travelled is to provide the spouse with a life interest in the estate assets. But, what does that mean? For example, who should pay the realty taxes or repairs? What about landscaping or utilities? If the intent was to provide the spouse with income to support her is she entitled to give that money away to someone else? Well – that depends on what the will says.

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Power of Attorney

When an acting attorney for property isn’t the right person for the job

When the time comes to consider estate planning options, there are a variety of different legal mechanisms that you can use to protect your personal and financial interests. One of the most effective ways of ensuring that your wishes are respected if you become infirm or incapable of making decisions is to grant a power of attorney for property or personal care to someone you trust. The only problem is that the future is uncertain and family dynamics change. The person named as your attorney today might not be the best person for the job when it really matters. If the person appointed as your parent’s power of attorney drops the ball, are you stuck with that power of attorney or do you have options?

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Elder Care

Paying Children to Care for their Parents?

When children grow up and start families of their own, they remain involved in their parents’ lives to varying degrees. Across Ontario, adult children are faced with choices concerning the care of their elderly parents. Some will elect to live with their parents and provide personal care. When private nursing costs tens of thousands of dollars per year, should the adult child who elects to care for a parent at home be allowed to claim compensation for the care provided? If so, how much compensation is reasonable?

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Estate and Trusts

Trustbuster – The Rule in Saunders v Vautier

Trusts are often used to control children and grandchildren from the grave. Sometimes the will-maker (“Testator”) holds back the money until the beneficiary reaches a certain age. Other times the money is held back until the beneficiary graduates from college or gets married. Many a beneficiary resent the conditions attached to their inheritance and they wonder – can we “bust the trust”? Well the answer is maybe - if you fall into the Saunders v Vautier Rule.

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When should I bring a motion for security for costs?

Security for costs is the payment of money or other security into court by a plaintiff or plaintiff by counterclaim to cover future costs orders made in favour of a successful defendant. Forcing a plaintiff to post security to cover your client’s costs is important for ensuring that your client is not left with an unenforceable costs order after successfully defeating a claim. It is also a useful tool in defending your client against frivolous claims. However, far more than just an effective costs-protection device, a successful security for costs motion can demoralize a plaintiff and even make the plaintiff think twice about continuing to pursue its claim. But when should such a motion be brought?

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elder abuse

Evidence in dependant’s relief claims –“…by a very thin margin…”

When an elderly person initiates a new relationship it can sometimes plant the seeds of litigation. Perhaps the elderly person needs a caregiver. Or maybe they strike up a friendship with a contemporary for companionship. Perchance, in an effort to reduce expenses, they take on boarders or tenants. But at death, those seeds can bloom into full-fledged litigation. The adult children of the elderly person might be caught off guard when the caregiver/companion or tenant/boarder claims to be a common law spouse. That is exactly what happened in Prelorentzos v. Havaris.1 For those involved in this type of litigation, the case is a worthwhile read on the issue of how the court goes about reviewing and weighing the evidence presented.

Footnotes
  1.   2015 ONSC 2844. This case is available on-line at . For another interesting case commentary on this case, see Joanne Hwang’s blog (of Whaley Estate Litigation) at ↵
     
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