Estate Litigation | All About Estates

Dementia does not Preclude Testamentary Capacity

Anna Alizadeh • March 8, 2017 • 0 Comments

Unhappy beneficiaries often challenge the validity of a loved one’s will on the grounds that the testator lacked the capacity to execute a will. Applicants use evidence of the testator’s dementia or Alzheimer’s disease (and other mental disorders) to establish that the testator lacked capacity to execute a will. However, it is important to keep in mind that capacity is time specific. A diagnosis of dementia or Alzheimer’s disease, for….

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Capacity Law, Elder Law, Estate Litigation, Estate Planning, Power of Attorney, Powers Of Attorney and Guardianship Disputes, Succession Planning, Testamentary Capacity, Wills

Limited Retainers, Lawyer Liability and Limitation Periods

Joanna Lindenberg • March 1, 2017 • 0 Comments

The recent Court of Appeal (“ONCA”) decision of Meehan v. Good, 2017 ONCA 103 (“Meehan”), reminds lawyers that the duty of care owed to their clients is extensive, and may operate beyond a limited-scope retainer. In Meehan, the plaintiffs, Michael and Anne Meehan, brought a claim against their lawyer, John Cardill, who they initially retained to pursue an assessment of the accounts of their previous counsel. The Meehans sued Mr…..

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Dependant Support, Estate Administration, Estate Litigation, Estate Planning, Liability, Power of Attorney, Powers Of Attorney and Guardianship Disputes, Testamentary Capacity, Undue influence, Wills

Issue Estoppel – Stopping a Second Kick at the Can

Gillian Fournie • February 22, 2017 • 1 Comment

The discovery of holographic wills always send up red flags to estates litigators, especially when the holographic will is a dramatic departure from the prior distribution of the estate. While questions of fraud immediately come to mind, there may also be a limitations problem if the holographic will is found more than two years since a certificate of appointment of estate trustee was issued. Problems may also arise if this….

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Contested wills, Estate Administration and Probate Applications, Estate Litigation

Dismal Results for Dreadful Estate Trustee

Joanna Lindenberg • February 8, 2017 • 1 Comment

A recent case of the Ontario Superior Court (Silva et. al v. Silva (Estate of)) demonstrates the wide remedies available to beneficiaries whose interests have been prejudiced by the misconduct of an estate trustee. Jose Lima Silva died without a will on June 24, 2015. He was survived by 5 children and appointed one of his sons, the respondent, as the estate trustee of his estate. The other four adult….

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Estate Administration and Probate Applications, Estate Litigation, Estate Planning, Executors, Uncategorized

Will Challenges and the Well – Acquainted Lawyer

Corina Weigl • January 20, 2017 • 2 Comments

Today’s blog was written by Jenna Ward, Articling Student, Fasken Martineau DuMoulin. A recent case of the Court of Appeal for Saskatchewan has emphasized the significance of first, the relationship between a testator and his or her lawyer and second, the experience and tenure of such lawyer in assessing testamentary capacity and by extension, in determining the validity of a will. Bachman v. Scheidt, 2016 SKCA 150 Bachman v. Scheidt….

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Contested wills, Credibility, Estate Planning, Family Conflict, Testamentary Capacity, Undue influence, Wills

Appeal Court: Fraudulent Concealment Stopped the Clock

Jacob Kaufman • January 18, 2017 • 0 Comments

I previously blogged about Roulston v McKenny et al, 2016 ONSC 2377, as a classic example of chutzpah. The deceased’s ex-wife had a claim against his estate if a life insurance policy lapsed. Even though the estate trustee knew that the policy had lapsed, she withheld this information from the ex-wife – and then argued the ex-wife’s claim was brought out of time. The application judge found that the ex-wife’s….

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Estate Litigation, Wills