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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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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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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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