Estate Litigation

Total 411 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

Has a Contingent Beneficiary Asked for an Accounting?

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An estate trustee does not have an obligation to provide a contingent beneficiary with an accounting; nonetheless, some form of accounting is generally done at the request of a contingent beneficiary. If accounts are not provided, a contingent beneficiary may bring an application to compel an estate trustee to pass their accounts. This will be costly and may be what the contingent beneficiary is trying to avoid in requesting a….

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Estate Administration, Estate Litigation, Estate Planning, Executors, Passing Of Trustees’ and Executors’ Accounts, 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

Affidavit Evidence – A Refresher

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Motions and applications rely on affidavit evidence – written statements sworn under oath. This is in contrast to actions, where evidence is provided by live witnesses who are examined or cross-examined in court (this is what you see on TV dramas). Relying on affidavit evidence translates into less time spent in court – since the judge reviews the affidavits prior to the hearing, court time is used by the lawyers….

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Credibility, Estate Administration and Probate Applications, Estate Litigation, Executors, Wills

Is It A Forgery?

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Many of us in the estates and trusts world have encountered a situation where a client or party has alleged that a signature or handwritten note is forged. The evidence of a forensic document examiner, or handwriting expert, is sometimes led to assist a party in establishing that the signature or handwriting is a forgery. In Chishti v. Northside Pharmacy Ltd. et al, 2021 NBQB 35 (CanLII) (“Chishti”), the court….

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Credibility, Estate Litigation

Zoom Is Here To Stay: Virtual Discoveries As The New Normal

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In the early days of the COVID-19 pandemic, I blogged about Justice Myers’ decision in Arconti v. Smith where his Honour decided that an examination should proceed virtually.  As his Honour pithily noted, we no longer record evidence with a quill and ink; technology changes and our legal practices must change with it. If there was a doubt as to whether Arconti was only applicable during the pandemic, Justice Myers….

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Estate Litigation
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