Commercial and Estate Litigation Blog
trustee compensation

Compensation for Acting as Guardian for Personal Care/Attorney for Personal Care

There is a curious quirk in the Substitute Decisions Act: while the Act explicitly permits a guardian of property appointed under a Power of Attorney for Property to take compensation for their services, there is no equivalent provision permitting Guardians of the Person appointed under a Power of Attorney for Personal Care to take compensation. An obvious question therefore arises: are guardians of the person entitled to take compensation for their services? And if so, how much?

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mistake in calculation

Can a trustee recover funds from a beneficiary where the trustee makes an overpayment by mistake?

The administration of the estate can take time and often the assets and liabilities will be known and the amount available for distribution can be estimated. Accordingly, personal representatives will oftentimes make an interim distribution from the estate to the beneficiaries leaving a holdback amount to cover any anticipated liabilities and expenses.In some cases, the personal representative’s estimates can be incorrect or there’s a liability that the personal representative failed to take into account. Meaning, the personal representative may have mistakenly made an overpayment to the beneficiaries.

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Court Costs

Discontinuing an action/abandoning an application – presumptive rules on costs

A civil action can be ended by the plaintiff by filing a notice of discontinuance. An applicant can end an application by filing a notice of abandonment. The steps can be taken by a plaintiff or applicant at any time. However, anyone who has been served with the claim or application, and who has responded to it, can ask the court to award them costs as compensation for the costs they incurred in responding to the proceeding.

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renunciation of trustee

Can a Named Estate Trustee Renounce Their Position Prior to The Death of the Testator?

An application to remove an estate trustee is often brought when there is significant acrimony in the administration of an estate stemming from the actions, perceived or real, of the trustee. However, if the named trustee is willing to give up the position on consent, simply substituting a different trustee can often reduce tensions and avoid costly litigation. Renunciation is “[t]he formal act whereby an executor entitled to a grant of probate (or person having the right to a grant of administration) renounces such right”.

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end of life

Do Religious Patients’ End of Life Wishes Bind Medical Decision-makers?

There have been developments in recent cases that impact the question of how best to safeguard the choices of people of faith with respect to “end of life” decision-making. The purpose of this blog is to review those cases and provide some insight about how best to ensure faith-based wishes are respected and followed by medical professionals, tribunals and the Court.

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missing will

Applications to Prove a Copy of the Will

An application for a certificate of appointment of an estate trustee with a Will (i.e. a probate application) ought to be accompanied by the Original Will. What happens if the original of a Will cannot be found after the death of the Testator?

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Legal Fees of Estate Executor

Who Pays the Legal Fees of the Executor in a Contested Passing of Accounts?

  It is clear from the statute that expenses properly incurred in carrying out the trust should be paid directly from the trust property.[1. See section 23.1 of the Trustee Act, R.S.O. 1990, c. T.23 Expenses of trustees 23.1 (1) A trustee who is of the opinion that an expense would be properly incurred in carrying out the trust may, (a)  pay the expense directly from the trust property; or (b)  pay the expense personally and recover a corresponding amount from the trust property.  2001, c. 9, Sched. B, s. 13 (1). Later disallowance by court (2) The Superior Court…

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Search for Beneficiary of Will

Ascertaining Beneficiaries: More Than Just a Facebook Search

You are the estate trustee of a deceased person’s estate, but after conducting an exhaustive search, you cannot locate all of the beneficiaries of the estate, or you are worried that other beneficiaries within a specific class may exist. This situation is not uncommon, and it appears to be more prevalent where the deceased emigrated from a foreign country and left family behind, and where the deceased died without a valid Will or there was poor succession planning.

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Certificate of Pending Litigation

Is Seeking A Certificate of Pending Litigation Without Notice Worth The Risk?

Justice Kurz’s recent decision, McNeil v. Kaloustian, highlights some of the risks associated with obtaining a Certificate of Pending Litigation (commonly known as a “CPL”) without notice. A CPL is a document registered on title to a property to provide a notice and warning to the public that the property is subject to a court dispute. Registering a CPL has the practical effect of restraining all dealings with the property (financing, mortgaging, sale, etc.).

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what is a holograph will?

What’s a Holograph Will?

It was 1948 and this wheat farmer got off his tractor and by mistake put it in reverse.  It moved backward and trapped the poor guy catching one of his legs under the rear wheel of the tractor. He had enough freedom of movement to move his arms and hands, but could not reach the controls. His wife finally discovered him, but by the time she got him to the hospital his injuries overtook him and he died. When they examined the tractor the next day they discovered that the farmer scratched the following on the fender, “In case I die in this mess, I leave all to the wife. Cecil Geo. Harris.” This incident took place in Saskatchewan. The court accepted the writing on the fender as a holographic will.  What would have happened if it took place in Ontario today?

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