It is generally understood that an estate typically needs to go through probate where the deceased held real property without any other “joint tenants”. Contrary to popular belief, however, there are some exceptions that allow us to deal with real property without first having to go through probate. One of the more curious and relatively unknown exceptions is known as the “first dealings'' exemption.
Heather and Chaim never believed in marriage. They lived together for 20 years, had 3 children and were happy. Chaim was hit by a truck and died. He had no Will. Had Heather been legally married she could have: 1. had the right to elect for an equalization payment under the Family Law Act; or 2. received an inheritance by virtue of an intestacy under the Succession Law Reform Act. Since there was no Will, Heather would have inherited a preferential share of the estate equal to $350,000 and 1/3 of the balance to share with the Chaim’s three children.
The Supreme Court of Canada in Smith v. Jones described solicitor-client privilege as the highest privilege recognized by the courts. In its recently issued judgement in Continental Bank of Canada v. Continental Currency Exchange Canada Inc. 2022 ONSC 647 CanLII, the Superior Court of Justice underscored the sanctity of the privilege and provided a stark reminder to litigants of the powerful remedies available to the court when an opposing party accesses confidential and privileged information which is relevant to the issues in the litigation.
Imagine Martin Markowitz’s sister coming into your office and telling you her brother’s story: “For nearly 30 years your psychiatrist takes over your life, claims your Southampton estate and your family business, as well as your Swiss bank account as his own. … He convinces you to become estranged from your only sister and persuades you that anyone you date is after you only for your money”.
In estate litigation this scenario comes up quite often. One family member stays in mom and dad’s house after their death and appears to be freeloading at the expense of the others. This can happen in estate litigation when a deceased person fails to adequately document their intentions with respect to the ongoing occupation of their home after their passing.
In Ontario, the current state of the law is such that a testator is free to exclude an adult, independent child from their will on the basis of their sexual orientation. The discriminatory intent may even be written into the will. For example, the following provision “I am excluding my only son from my will because he is homosexual” is, according to the principles set out by the Court of Appeal for Ontario in the 2016 Spence v. BMO Trust Company decision, presently considered to be an acceptable exercise of a testator’s testamentary autonomy.
One of the most frustrating times for litigants is when a court issues an order against their adversary and it is ignored with impunity. In many cases, the non-compliant litigant is given several chances to adhere to the court’s order without facing sanctions. Watching your adversary flout the rules and treat court orders as suggestions can make the innocent litigant feel as if the court’s orders can be undermined or ignored. This angst gives rise to frustration, bewilderment and the question: is there a way to deal (effectively) with parties that disregard court orders?
While initiatives by lawmakers are being pursued to harmonize laws addressing the enforceability of capacity-related documents worldwide, this has not yet been finalized. Therefore, when issues regarding the enforceability of POAs arise, consultation with a litigation lawyer about what your options might be – potentially in coordination with a litigation lawyer in another jurisdiction – is recommended.
How do dependants rank in terms of priority over others with a claim or interest in an estate’s assets? Let’s get a running start with a quick review of the law.During their lifetime people often borrow money. Sometimes the loan is to buy a house or car, or even to invest in a business. When a person dies, one of the jobs of the executor is to pay off all the debts before dividing the estate amongst the beneficiaries. But, what about those people who relied on the deceased for support? Who gets paid first - the creditors or the dependants?
In this case, the children were fortunate that the judge found that the father’s residence was really held in trust for the children so it did not form part of the estate. Muna did not get much money. This time the children were lucky. Unfortunately, that is not always the case.