Estate Litigation

Total 413 Posts

Dismal Results for Dreadful Estate Trustee

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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

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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

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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

When is a Settlement Considered Binding and Enforceable?

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In the recent decision of Prince v Nytschyk Estate, 2016 ONSC 7459, the Ontario Superior Court of Justice enforced a settlement despite the lack of signed minutes of settlement at the time of death of one of the parties. In this case, Cherie Lewicki (“Cherie”) and Joseph Nytschyk (“Joseph”) were in a common-law relationship for about 15 years, during which time they lived together in a house in Joseph’s name alone. Joseph died intestate (without a Will) in 2013 and Cherie continued to live in the house until her death in 2015. Before her death, Cherie commenced a claim for dependent’s relief against Joseph’s estate. As part of her claim, Cherie sought a declaration that the house was held in trust for her based on a resulting or constructive trust. With the estate’s potentially significant exposure to a dependant’s support claim, the parties agreed to a settlement whereby the house would be transferred to Cherie. However, prior to the completion of any signed minutes of settlement, Cherie unexpectedly died…..

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Contracts, Estate Administration, Estate Litigation, Wills

Videographers Beware

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Occasionally, those hoping to demonstrate the capacity of a testator will film a video of the testator purporting to show that they were cognitively intact or that the will was a reflection of their independent and capable wishes. Unfortunately, the naïve interviewer makes the mistake of confusing the preservation of social graces for intact cognition and considers passive acquiescence as evidence of independence of mind. Clinicians understand, or should understand, that one….

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Capacity Law, Contested wills, Estate Litigation, Family Conflict, Undue influence
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