Diane Vieira

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Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Ontario Bar Association and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com More of Diane's blogs can be found at https://devrieslitigation.com/author/dvieira/

Children are not Chattels: Who Cares for a Child when a Primary Caregiver Dies?

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In Marshall vs. Snow, the court was asked to determine who should be awarded primary custody of a minor child following the death of her mother (the child’s primary caregiver). Prior to the mother’s death, the child’s father and mother shared joint custody but not equal parenting time or decision-making rights with the mother having final decision-making authority.  The child also resided with and was close to her maternal grandparents. A….

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Guardianship

The Importance of Independent Witnesses in a Will Challenge

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Di Nunzio vs Di Nunzio reminds us of the standard of evidence required in a will challenge. The testator made a new will in 2017 (the “2017 Will’).  The 2017 Will was made while the testator was in palliative care and she retained a new lawyer to assist her to make the will. In the 2017 Will, she appoints her daughter Teresa (her primary caregiver) as her estate trustee and….

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Wills

Passing of Accounts when the Grantor is Presumed Capable

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In Winkler v. Thompson, the court considered whether a niece who held a power of attorney for property for her uncle (the “Deceased”) but insisted that she never acted in a fiduciary capacity for the Deceased should have to pass her accounts. The Deceased was survived by his estranged spouse (“Ilse”) and his niece (“Crystal”). Crystal agreed to pass her accounts when requested to by Ilse. Crystal, who held a….

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Passing Of Trustees’ and Executors’ Accounts, Power of Attorney

The Court of Appeal Considers if an Application for Retroactive Support can be brought against an Estate

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In Blacklock v. Tkacz, the Ontario Court of Appeal confirmed that pursuant to section 17 of the Divorce Act, an application cannot be brought to claim or vary a child support order against a deceased’s payor’s estate if the original support order does not explicitly bind the payor’s estate. The Appellant was the ex-wife of the deceased. The parties had divorced in the late 1970s and a divorce order granted in 1978…..

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Estate Litigation

Audio Recordings in a Guardianship Application; Think Twice Before Pressing Record

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In the recent guardianship case, Rudin-Brown v. Brown, the court considered whether to admit into evidence recordings made of an incapable adult’s telephone conversations. Carolyn was found to be incapable in 2018.  In 2016, Carolyn signed new power of attorney documents for personal care and property (“2016 Powers of Attorney”) appointing her son, Gordon as her attorney in both documents.  Her daughter, Missy, sought an order that the 2016 Powers….

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Powers Of Attorney and Guardianship Disputes

Removing an Estate Trustee: More Than a Feeling

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In Viertelhausen v Viertelhausen, the court dismissed an application to remove the estate trustee due to lack of evidence of a true conflict of interest. The deceased, Bote, died without a will. His brother, Bill, obtained a certificate of appointment of estate trustee without a will. The applicant, Teresa (a niece of both Bill and Bote) who was also a beneficiary of Bote’s estate, commenced an application to remove Bill….

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Estate Litigation
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