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Entitlement to Support Despite Prenuptial Agreement – The Butts Case

Challenging a prenuptial agreement in the context of estate litigation happens more often than you think. When wealthy people marry, their lawyers often advise them to ensure that their fiancé signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case, God forbid, the marriage breaks up and/or the wealthy spouse dies. So, if the couple each hire good lawyers and the prenuptial contract clearly spells out their agreement, is that ‘pre-nup’ still open to challenge?
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Distribution of estate by an Estate Trustee During Litigation

Is it appropriate for a court order to permit an Estate Trustee During Litigation (“ETDL”) to distribute the Estate? Possibly. The statutory authority to appoint the ETDL is found in Section 28 of the Estates Act, which provides that an ETDL has all the rights and powers of a general administrator, other than the right of distributing the residue of the property. Generally, an ETDL is appointed when the court feels a neutral third party should be administering an estate to preserve estate assets.
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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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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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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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Second marriages and protecting your children

Joseph was 60 years old when he lost his wife to cancer. Online he met an Israeli named Rebecca, a 40-year-old widow. They emailed each other, grew to care for one another and decided to marry. Rebecca and her children moved into Joseph's home. The adult children from Joseph's first marriage feared that Rebecca and her children were going to take away their inheritance. Joseph assured his children that Rebecca signed an agreement under which she gave up all her claims under the Family Law Act and could not claim support against his estate when Joseph died. Joseph assured them they he left his children all of his money. Should the children have relaxed? Maybe – Maybe not.
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Religious Marriages status in Ontario Law

Harry, 85, wants to marry 75-year-old Esther, but he does not want to lose his widower's pension. They agree not to obtain a marriage license or register the marriage, but instead to have only a ritual ceremony in a rabbi's office. Harry dies and his will leaves his assets to his children. Does only a religious marriage ceremony give Esther any rights to Harry's estate?
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