Total 114 Posts
Because the doctrine of suspicious circumstances was developed in respect of probate and wills, it cannot easily be exported into other areas of law, including contract law…..
Suspicious Circumstances – For Wills Only Continue Reading »
Capacity Law, Contested wills, Contracts, Estate Litigation, Estate Planning, Executors, Geriatric Care Management, Property, Real Estate, Testamentary Capacity, Trustee, Undue influence, Wills
What happens when a lawyer is retained by a testator to make a will, but that will is never made? While the testator (or their estate) may have a claim against the lawyer, do the beneficiaries of that unmade will also have a claim? The Historical Origin of “Disappointed Beneficiaries”: White v. Jones In this 1995 UK case by the House of Lords, the testator wished to revoke a prior….
All About The Disappointed Beneficiary Claim Continue Reading »
Contested wills, Estate Litigation
A person’s house is often their most valuable assets – both monetarily and emotionally. As a result, testators tend to put a lot of thought into who, and how, they wish to leave their house. However, as is always the case, best laid plans often go awry. One example of this, explored in the 2022 Court of Appeal of Ontario decision Barsoski Estate v Wesley, is when it is unclear whether the will gifts someone with a life interest in the house or a licence to use the property…..
Life Interest or Licence to Use? Continue Reading »
Charitable Giving, Contested wills, Estate Administration, Estate Litigation, Estate Planning, Interest, Philanthropy/Charitable Giving, Property, Real Estate, Succession Planning, Wills
A recent Court of Appeal decision, Walters v Walters, 2022 ONCA 38, addresses a trustee’s requirement to give effect to a testator or settlor’s intentions when exercising discretion with respect to distributions from a discretionary trust. At issue was whether the trustees had improperly relied on extraneous or irrelevant factors when exercising such discretion. The decision, written by Justice Sarah Pepall for the Court, is a helpful read as it….
Verifying the capacity of a testator prior to him or her executing a will is essential, and the test for testamentary capacity is well known to drafting solicitors and estate litigators. In particular, Banks v. Goodfellow provides that a person executing a will: (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; (3) shall be….
Taking the Extra Steps Continue Reading »
Contested wills, Estate Litigation, Testamentary Capacity, Wills
In will challenges, it is common to seek the disclosure of the testator’s medical records for the period around the time the will was signed. The medical records are directly relevant to the question of whether or not she had the requisite capacity to sign the will. While the testator has a right to privacy that continues after death, the harm caused by disclosure of the records after death is….
Disclosure of a Party’s Medical Records Continue Reading »
Contested wills, Costs, Credibility, Estate Litigation, Family Conflict, Healthcare, Limitation periods, Wills