Contested wills

Total 117 Posts

Walters v. Walters: Limits to “Absolute Discretion” and Judicial Intervention by: Yvonne Mazurak

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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….

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Contested wills, Estate Litigation, Estate Planning, Executors, Family Conflict, Wills

Taking the Extra Steps

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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….

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Contested wills, Estate Litigation, Testamentary Capacity, Wills

Disclosure of a Party’s Medical Records

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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….

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Contested wills, Costs, Credibility, Estate Litigation, Family Conflict, Healthcare, Limitation periods, Wills

Potential Cost of Witnessing a Will

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Across Canada, the provinces have built safeguards against undue influence into their law regulating wills: if the witness or the witness’ spouse receives a gift of property under the will, that gift is void. Unfortunately, this rule has the potential to disinherit innocent beneficiaries who unwittingly agree to act as witnesses to the will. This was the situation before the Supreme Court of British Columbia in Wolk v Wolk, 2021 BCSC 1881…..

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Contested wills, Estate Administration, Estate Administration and Probate Applications, Estate Planning, Family Conflict, Wills

Increase In House Value Means $1.4 million Gift to SPCA

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For many people who own the house in which they live, their home is the most valuable asset in their estate. In many communities in Canada, house values have steadily increased over the last several years and particularly during the COVID-19 pandemic. This means that the value of an estate may be much greater at the time of the testator’s death than when the testator prepared and signed the last….

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Capacity Law, Charitable Giving, Contested wills, Estate Litigation

No Signature, No Problem

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In Bishop Estate v. Sheardown, 2021 BCSC 1571, the Supreme Court of British Columbia gave effect to a Will the testator had failed to execute before her death. Facts: Marilyn Bishop died in British Columbia in the summer of 2020 at the age of 76. She had a prior Will signed in 2014, which named her husband as her executor and primary beneficiary, and in the event he predeceased her,….

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Contested wills
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