Commercial and Estate Litigation Blog
sexual orientation

Is disinheritence because of sexual orientation legal?

Will a Canadian court vary or set aside a will when a parent disinherits a gay/lesbian child because of his/her sexual orientation? The law may be different depending on the province.In Canada, the law balances the idea of testamentary independence against public policy concerns. While cherishing testamentary freedom, the law intervenes when it finds provisions in the will offensive to public policy and or equity. In Ontario, this restriction on testamentary freedom has been expressed by laws passed to protect spouses (under Part I of the Family Law Act) and dependants (under Parts II and V of the Succession Law Reform Act).

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Are Will Kits a good idea?

Imagine a scenario when two sisters, Jane and Jillian, were living in Ontario. Jillian was going on vacation and wanted to make a Will - just in case, but did not want to bother with a lawyer. She bought a Will kit and filled in the places where indicated and left everything to her boyfriend and charity. By mistake, she misread the instructions and did not sign the Will at its end. Jillian died and her sister's lawyer challenged the Will asking that it be declared invalid for not complying with the formalities required when executing a Will. Jillan's intention was unambiguous, but was her Will valid? Maybe - Maybe not.

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To Adeem or not to Adeem

Mum was scared. The confusion when she paid her bills, mixing up her medications and failure to remember when to renew her GICs prompted her to grant her son Sam power of attorney over both her property and personal care. Sam was now authorized to make decisions regarding Mum's financial affairs and personal care related to issues like housing and health care.

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Where there is life, there is hope

When should hospitals take away a person's right to make end-of-life decisions? This topic is once again in the news as Moe Maraachli and Sana Nader are at odds with the London Health Sciences Centre. The parents want their terminally ill child discharged from the hospital to die at home. The hospital refused. The parents lost at the Health Care Consent Board and lost their appeal in court. Without commenting on this very sad case it once again raises the issue of who has the right to make life-ending decisions for people who are not capable of making those decisions. Should it be the parents of a child or the hospital? If an adult has signed a power of attorney for personal care should the attorney for personal care or the doctor decide?

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Honouring your Parent’s Pledge to Charity

Still today, I remember the Rosh Hashanah of my youth and especially the awe I felt hearing Chazzan Weiss' Unetane Tokef Prayer. As a child, hearing the congregation chant the prayer "Repentance, Prayer and Charity reverse the evil decree" made me think. If I give charity, does G-d consider himself bound to change the decree? Now as an adult, given my profession and with my tongue planted firmly in my cheek, I cannot help but also wonder whether our estates would be bound by charitable pledges if the Master of the Universe, G-d forbid, did not keep his side of the bargain. As you can imagine, there are times when a person makes a pledge to a charity and passes away before the pledge is honoured. Do you think the family should still honour that pledge? Is there a legal obligation to do so?

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Who keeps engagement ring?

Marsha met Marc only 3 months ago. When she agreed to marry him she thought he was a wealthy entrepreneur. Instead, she found out that Marc only owned a small store and was barely making ends meet. When Marsha discovered her mistake she immediately started to date other men. After Marsha agreed to marry him, Marc gave her a $20,000 diamond engagement ring. Soon after Marc caught Marsha on a date with another man. He demanded that she give back the engagement ring. She refused. In her mind the engagement ring was a gift. Marc sued. Who do you think should get the ring? Let's see what the courts say.

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But I Incorporated…

Why do people incorporate companies? One of the main reasons is that generally, if a company does business, no employee or officer of the corporation is personally liable for any act within the scope of their duties on behalf of the corporation. Now, there are some exceptions to that general rule that could result in personal liability, even if the business is incorporated.

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Victims of fraud and bankruptcy

What remedies are left to a victim of fraud when the fraudster goes bankrupt? Gregory Sidlofsky of our office represented a company that was deceived into loaning money to a company called Credifinance Securities Limited. After we were able to tie up part of the proceeds of the loan, Credifinance declared bankruptcy. In our efforts to recover what remained of the loan, we argued that a constructive trust ought to be impossed on $310,500 in the fraudster's account that could be traced to the loan.

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Do mistresses have a right to inheritance?

Can you imagine burying a spouse and then being sued for support by a mistress? For those who believe in primacy on marriage and that marriage obligates its partners to fidelity, the idea of rewarding a mistress to a portion of the family's inheritance is unjust. Others argue that financial obligations should flow from the intensity and duration of life partner relationships regardless of the partners' marital status. What do the courts think?

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Clean hands and who gets the cottage?

Albert was always a bully and Dad loved him best. Judy became a successful doctor and, in part to get away from her dysfunctional family, she moved to Montreal. When Dad died, Judy was happy to see that her father left his $1-million estate equally to both his children. But Albert had other ideas.

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