Estate Litigation

Total 413 Posts

Challenging Will Challenges – Can they be estopped?

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Will challenges are the cornerstone of estate litigation; indeed, they define the practice area. The reasons for launching a will challenge are relatively fixed: lack of testamentary capacity and undue influence being the most common. Another way of challenging a will is to have it “proved in solemn form.” By seeking to have a will “proved,” the propounder of the will, usually the estate trustee, must demonstrate to the court….

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Contested wills, Estate Administration and Probate Applications, Estate Litigation, Executors, In the News, Wills

Court of Appeal Upholds Testamentary Freedom

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Today’s blog is written by guest blogger Adam Parachin, Associate Professor at the Faculty of Law at the University of Western Ontario.

The Ontario Court of Appeal has released its decision in Spence Estate (Re) 2016 ONCA 196. In reversing the lower court holding of Justice Gilmore, the Court of Appeal confirmed – wait for it – that testators are not obligated to benefit the persons they are not obligated to benefit. The most astounding feature of the judgment is that it was necessary in the first place…..

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Estate Litigation, Executors, In the News

BEWARE OF HIDDEN TAX CONSEQUENCES

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A recent Alberta Court of Queen’s Bench decision in Morrison v. Morrison 2015 CarswellAlta 2249 (Alta.Q.B.) reminds advisors and clients alike of (i) the need to consider the income tax consequences of not only their overall estate plan, but components within it, and (ii) the importance of stating intention expressly and directly, particularly when one child may be benefitted more so than other children. The facts in Morrison were not unusual nor is the fact that, despite the relatively modest dollar amounts involved, the matter went to trial – an unfortunate result for all concerned…..

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Estate Litigation, Estate Planning, Family Conflict, Wills

RESIDENCY OF A TRUST – A QUESTION OF MANAGEMENT AND CONTROL II: A View from the CRA Bridge!

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Last fall I wrote about the Supreme Court of Newfoundland and Labrador being asked to rule on the specific issue of residency which would have significant tax implications to the trust depending on the Court’s determination. In Discovery Trust vs Canada (National Revenue), 201201G6615, at issue was whether a trust was a resident of Newfoundland and Labrador where the beneficiaries resided or in Alberta where the trustee was a resident…..

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Canada Revenue Agency, Estate Administration, Estate Administration and Probate Applications, Estate Litigation, Estate Planning, Executors, In the News, Liability, Property, Tax Issues, Trustee, Trustee Disputes, Trusts, Wills

Support, Divorce, and Insolvency

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Even when a dependant’s entitlement to and need for support is clear, there simply may not be enough money in the estate to provide assistance. For this reason, the Succession Law Reform Act (“SLRA”) allows certain assets passing outside of the estate (often to a designated beneficiary) to be clawed back into the estate for the limited purpose of providing a dependant with support. The designated beneficiary may be tempted….

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Dependant Support, Estate Administration, Estate Litigation, Spouse

Consent for Treatment and Conflicts between Substitute Decision Makers: Options for Resolution

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As per the Health Care Consent Act (HCCA), and equally applicable to the Mental Health Act (MHA), capacity to consent to treatment is defined as: A person is capable with respect to a treatment if the person is able to understand the information that is relevant to making a decision about the treatment, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision. When a person….

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