Estate Litigation

Total 413 Posts

Costs in Capacity Litigation

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The question of who will bear the costs of a proceeding at the end of the day is often hotly debated, but the matter may be more complex in cases where the litigation concerns the guardianship of, or issues relating to, an incapable individual. The court in Fiacco v. Lombardi (“Fiacco”) makes clear that “The exercise of the court’s discretion in respect of cost claims in capacity litigation should reflect….

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Capacity Law, Costs, Estate Litigation, Family Conflict, Guardianship

Reviving a revoked will

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It is quite common for a will to begin with a statement that all previous wills and codicils are revoked. This is done to ensure that only the will being executed at that time remains the valid will of the testator, and any prior testamentary instruments no longer desired will not end up being inadvertently  relied upon by a future estate trustee. Less well-known is that a previously revoked will….

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Estate Litigation, Estate Planning, Succession Planning, Trustee, Wills

You’ve been served!

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The Originating Process One of the first steps taken in any court procedure is service of the originating process. Whether the procedure is by action or application, service of the originating process puts parties and others who may be affected by the outcome on notice that a legal proceeding has started. In estate litigation there may be a number of parties who need to be served at the outset of….

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Estate Litigation

When Families Collide with Constructive Trusts

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Families often fall into patterns and routines; they are comfortable, stable, and predictable. They can also give rise to legal rights over land. The extent and enforceability of those rights is often put to the test following death or divorce. Such was the case in Tomek v Zabukovec, 2020 ONSC 2930. History of the Property Joseph Sr. (the “Deceased”) and his wife Mary had two sons, Joseph Jr. (the “Husband”)….

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Contracts, Estate Litigation, Estate Planning, Executors, Family Conflict, Limitation periods, Property, Resulting Trust

Seeking disclosure of a lawyer’s file to prove substantial compliance

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White v. White, 2023 ONSC 3740 A recent case heard before Justice Myers of the Toronto Estates List provides an interesting discussion of orders for the production of a will-drafting solicitor’s file, and shows the limits on such orders being sought under Ontario’s move to ‘substantial compliance’, which occurred in January of 2022. In this case, the Applicant sought an order for the production of the file of the drafting….

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Contested wills, Estate Litigation, Executors, Wills

The SDA and Parens Patriae Jurisdiction

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Power of attorney and guardianship disputes are fairly common in the estate litigation world. Oftentimes, siblings proceed to court as a result of allegations of financial abuse or a failure to look after the health and care of an incapable parent, in accordance with what is required of an attorney for property and/or personal care. Families therefore fight over who should be appointed by the court as the incapable person’s….

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Capacity Law, Elder Care, Elder Management, Estate Litigation, Family Conflict, Geriatric Care Management, Guardianship, Power of Attorney, Powers Of Attorney and Guardianship Disputes
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