Commercial and Estate Litigation Blog

Dealing with a Testator Whose English is Suspect

It seems self evident and almost trite to say that a will must reflect the intention of the testator. Accordingly, those parties who come to court and submit that the will in question is authentic and valid must prove, among other things that the Testator knew and approved of the content of the will. Mistakes in how instructions are taken and the execution of the will may result in disappointed beneficiaries and liability to the solicitors who took the instructions, drafted the Will and saw to its execution.

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Does a Heter Iska Increase the Risk of Litigation?

Would an Ontario court enforce a Heter Iska? When a religious Jew lends another Jew money they often enter into an agreement called a Heter Iska. Faced with the biblical prohibition against charging interest on loans and the reality that lenders are more likely to lend people money when interest can be charged, the Rabbis created a halachic mechanism to still allow a lender to profit from the loan and not charge interest. This halachic document is called the Heter Iska. The Heter Iska characterizes the lender as an investor who provides capital for a business venture. The Heter Iska provides that the investor transfers ½ of the money as an interest-free loan, is to be repaid even in the case of total loss; the other ½ of the money is the investor’s share of the business venture, which entitles the investor to receive profit that not coincidentally is equivalent to the interest a lender would charge. Thus, at the end, the investor’s money would be returned, and any profits (or losses) would be shared. This halachic mechanism serves to ensure that Jews will not have a financial disincentive to loan one another money.

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Protecting catastrophically injured person after the settlement

Car accident victims suffering from a catastrophic injury often cannot conduct their own affairs. If there is no power of attorney, courts must approve of the person being appointed as guardian and the management plans. Any settlement agreement with the insurance company must also be approved by the court. To that point the system in Ontario effectively protects the best interests of the incapable person. The question is what about afterwards?

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Does A Constructive Trust Trump the Bankruptcy and Insolvency Act?

In the words of the Court of Appeal at paragraph 34, "those funds should be the subject of a constructive trust in favour of DSLC Capital Corp. in order to prevent the unjust enrichment of Credifinance Securities Limited." But, this is the end of the story. Let’s start at the beginning. DSLC Capital Corp. (DSLC) sought to invest in Credifinance Securities Limited (Credifinance) thinking that it was a member in good standing with the Investment Industry Regulatory Organization of Canada (IIROC). DSLC’s plan was to become a part owner of Credifinance so that DSLC could sell securities and other investments to its existing network of investors. Based on representations of the principal of Credifinance, DSLC loaned Credifinance $400,000 and, by share subscription agreement, proceeded to purchase a minority ownership interest in Credifinance.

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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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When Does The Limitation Period Clock Start Ticking?

In 2006 Ferrara clearly knew someone thought his lawyer, Stephen A. Schwartz, was negligent. Arguably Ferrara would have to sue Schwartz by 2008 or his action would be statute barred. The Ontario Court of Appeal concluded that the limitation period was not triggered until 2009 which meant that Ferrara had until 2011 to start the law suit. In making that decision there was a divergence from a group of cases that suggested that the limitation period would have been triggered in 2006. But, that’s the end of the story. Let’s start at the beginning and review the implications on the issue of discoverability.

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capacity

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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Certain obligations can trump testamentory freedom

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.

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Unjust enrichment, equity and your mother-in-law

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.

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Can assets of an estate be left to one heir, leaving others out in the cold?

Reuben equally, in his will, and in accordance with his culture, all the assets of the father were left to the male heir. Is this legal? The legality of a father’s will may depend on which province’s law applies. If the law of British Columbia governed, there is a very good chance that Samantha would succeed and the court would order the estate be split equally. If Ontario law applied and there were no other legal issues raised concerning the validity of the will, then Samantha would have a less likely chance to win. Why the uncertainty? Let’s look at three cases to explain, Tataryn v. Tataryn, Cummings v. Cummings and Johnson v. Huchkewich.

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