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Wills, Trusts & Estates

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Thursday, December 01, 2016 @ 7:00 PM

Estate trustees play nice or pay the price

A recent decision of the Ontario Court of Appeal is a wake- up call for estate trustees and other fiduciaries. In Brown v. Rigsby 2016 ONCA 521, the court denied estate trustees indemnification of their legal costs. As a general rule, estate trustees involved in litigation over the estate are entitled to be indemnified for reasonably incurred legal costs. However, the Court of Appeal ruled that indemnification is not only conditional on the legal costs incurred being reasonable, but as well, the reasonableness of the conduct of the estate trustee seeking indemnification. ... [read more]

Thursday, December 01, 2016 @ 7:00 PM

Preventing poverty not a charitable activity

On June 24, in Credit Counselling Services of Atlantic Canada Inc. v. Canada (MNR) 2016 FCA 193, the Federal Court of Appeal found that Credit Counselling Services of Atlantic Canada Inc.’s activities that related to the prevention of poverty could not be classified as charitable activities for the purposes of the Income Tax Act (ITA). ... [read more]

Thursday, December 01, 2016 @ 7:00 PM

The problem with guardians

Disputes about the appointment of a guardian of property and/or personal care for incapable individuals are on the rise. With an aging population, these types of disputes made under the Substitute Decisions Act (SDA) have become much more prevalent, but they are by no means limited to the elderly. ... [read more]

Thursday, November 24, 2016 @ 7:00 PM

Wills, Estates & Trusts Law - Gifts - Inter vivos - Presumption against gift, resulting trust - Rebuttal - Presumption of advancement - Person in loco parentis - Rebuttal - Validity of transfer

Appeal by the plaintiff, the Thorsteinson Estate, from a judgment dismissing an action and upholding a gift in favour of the defendant, Olson. The testator had served as the defendant’s nanny and they subsequently developed a close relationship akin to parent and child. As an adult, the defendant lived at the testator’s property for several years. In 2000, the testator signed a deed of gift transferring nine parcels of farmland to herself and the defendant as joint tenants. In 2001, a dispute arose between the parties and the testator subsequently commenced an action seeking to have the transfers set aside on the basis of resulting trust, undue influence and breach of fiduciary duty, and seeking an accounting for the defendant’s use and occupation of the land. The testator’s Estate continued the action following the testator’s passing. The trial judge dismissed the action in its entirety and upheld the gift. The trial judge found no evidence of undue influence, and concluded that if the presumptions of either undue influence or resulting trust had arisen, both were rebutted by evidence of an intention to provide a complete and unconditional gift to the defendant. The Estate appealed. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Wills, Estates & Trusts Law - Proceedings - Practice and procedure - Costs

Appeal by Roberta Cook and Ruth Estabrooks from the award of costs they received in successfully defending estate litigation. Roberta and Ruth sought solicitor-client costs, while the unsuccessful plaintiffs in the litigation also argued that they should have been awarded solicitor-client costs. Jarvis Estabrooks executed his last will and testament on May 3, 2001. The will was accidentally destroyed while Jarvis sorted through papers. That will provided for $40,000 bequests to each of two of Jarvis’s daughters, while his other three daughters were largely disinherited. The vast majority of the estate was bequeathed to two nieces, Roberta and Ruth. Ruth was also named executrix. Jarvis died in January 2012. Ruth applied for probate. The daughters filed caveats, asserting their entitlements to share in the distribution of the estate as dependants. The daughters subsequently amended their claims to argue that Jarvis intentionally destroyed his will and therefore died intestate. Ruth and Roberta offered to settle for $80,000 all-inclusive on September 8, 2014. The daughters countered with an offer to accept $350,000. The court in part relied on evidence from Jarvis’s friend Shaw in finding that the destruction of the will was unintentional, and that Jarvis was unconcerned because he had a copy of the will filed with his lawyer. The court awarded $870,000 in party and party costs to Roberta and Ruth, payable by the estate. He denied Ruth and Roberta solicitor-client costs from the date of the settlement offer because the daughters’ claim was not dubious, because the $80,000 offer represented less than 10 per cent of the potential recovery, and because the daughters narrowed their issues before trial, abandoned their claims of dependency, provided security for costs and consented to the taking of evidence by way of commission before the trial. ... [read more]

Thursday, October 27, 2016 @ 8:00 PM

Legal Profession - Regulation of profession - Law societies and governing bodies - Compensation funds

Appeal by the defendant from a decision dismissing his motion for an order striking out the statement of claim. The appellant, a lawyer, was the executor and lawyer of the plaintiff estate. The beneficiaries of the estate commenced the present action after the appellant sold the major asset of the estate, a home, below market value without disclosing that the purchaser was his wife. The Law Society subsequently reimbursed the plaintiff beneficiaries $47,000 from its reimbursement fund for the appellant’s conversion of estate property, obtained a release and assignment from the plaintiffs and assumed conduct of the within action. The appellant argued that the action, being funded by the Law Society, was the product of champerty or maintenance and that the Law Society had no legislative jurisdiction to fund and maintain the action, and was only permitted to participate in the action as a plaintiff or as a co-plaintiff. ... [read more]

Thursday, October 27, 2016 @ 8:00 PM

Wills, Estates & Trusts Law - Wills - Revocation - By operation of law - By marriage - Exceptions - Wills made in contemplation of marriage

Appeal by a beneficiary, Dawn, from a finding that the testator’s will was revoked by marriage. The testator, Roy, died in 2012. He was survived by his spouse, Paulette, and two children from his first marriage, Shayne and Dawn. In 1997, Roy executed a will in which Shayne and Dawn were appointed as executors and beneficiaries of the residue of the estate in equal shares. In August or September 1998, Roy and Paulette began living together. In August 1998, Roy executed a second will which was identical to the 1997 will with the exception that Paulette was to receive Roy’s cabin and furniture and contents of Roy’s home. Roy and Paulette married in 2012 after Roy was diagnosed with cancer. He died less than a month later. Paulette commenced an application to be appointed as administrator of Roy’s estate based on her assertion that Roy died intestate, as his 1998 will was revoked by their 2012 marriage. Dawn sought to sustain the 1998 will arguing that it was not revoked by s. 17(1)(a) of the Wills Act, 1996, because of the plain meaning of s. 17(3). The chambers judge held that s. 17(3) applied only where a will was made after two years of cohabitation and therefore s. 17(1)(a) was given full effect. As a result, she found that the 1998 will was revoked upon the marriage of Roy and Paulette. ... [read more]

Thursday, August 25, 2016 @ 8:00 PM

Wills, Estates Trusts Law - Proceedings - Practice and procedure - Costs

Appeal by the estate trustees, Rigsby and Shackleton, from an order requiring the parties to bear their own costs. The appellants and the three respondents were siblings. Along with a sixth child, the parties were the residual beneficiaries under their mother’s will. The appellants were the estate trustees and appointed under a power of attorney. In 2008, the respondents commenced an application seeking the appellants’ removal as trustees, a passing of accounts, and repayment of amounts taken from the estate. The action settled in 2014. The parties were unable to agree on disposition of the costs of the action and agreed to refer the matter to the court. The motion judge found that the terms of the settlement reflected divided success, justifying an order that each party bear their own costs. The appellants obtained leave to appeal to the Court of Appeal. They submitted that they were duty bound to defend the action and the estate, and that in the absence of serious or unreasonable misconduct, their costs were payable out of the estate. ... [read more]

Thursday, April 07, 2016 @ 8:00 PM

Heavy duty

It is not uncommon for an executor/estate trustee to have been the power of attorney (POA) for the deceased and to be a named beneficiary of the estate. It is also not uncommon for disputes to arise between the beneficiaries of an estate after the deceased dies whereby the truth of the deceased’s wishes is somewhere behind the smoke of conflict and possible fabricated theories of the deceased’s wishes. ... [read more]

Thursday, March 03, 2016 @ 7:00 PM

The smart money donation

With the recent focus in the media and among grassroots organizations, many Canadians are supporting or thinking about supporting the settlement of Syrian refugees to Canada. ... [read more]