Commercial and Estate Litigation Blog

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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Will Your Child Marry A Jew?

As chair of B'nai Brith Canada's Trusts & Estates Group I oversee the committee that chooses the subject matter and format of the continuing legal educational programs offered every year to the lawyers and accountants of our community. We choose topics that are relevant to the profession and to the Jewish community. This year we are examining whether a clause in a will that disinherits a child for marrying outside the faith is legal.

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Are Promises Enforceable?

In Belvedere v. Brittain Estate, 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 $1.75 million, as long as they were still living together. Jeffrey insisted that Lora sign a cohabitation agreement before he would keep his promise. Before the agreement was signed Jeffrey died. Was Jeffrey’s promise legally enforceable? At trial Justice Brown of the Ontario Superior Court of Justice decided that Lora would get the money. Jeffrey’s estate appealed.

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Corporate Trustees and Fiduciary Accounting

During litigation someone still has to manage the affairs of the estate. Normally, financial institutions are temporarily appointed by the court to manage the estate as Estate Trustee During Litigation. According to Rayna Zucker, vice-president, TD Waterhouse Private Trust in Toronto, “when people are fighting, the court appoints a professional third party to preserve the assets they are fighting over. We don’t take sides and we have the experience and internal resources to help ensure that there are still valuable assets available at the end. Our activities are transparent to everyone because of our ongoing accounting.”

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