Estate Litigation

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Lawyer Representation in Estate Litigation

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A recent case confirmed that estate trustees representing an estate in litigation must have a lawyer unless the court dispenses with that requirement. In Scarangella v. Oakville Trafalgar Memorial Hospital, Ms. Scarangella commenced a medical negligence action as a claimant under the Family Law Act and as the estate trustee on behalf of her late partner’s estate.  As she was self-represented, she brought a motion seeking leave to act on….

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Estate Litigation

Medical Evidence Under Sections 35 and 52 of the Evidence Act and Rule 53.03 of the Rules of Civil Procedure

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Irina Samborski, associate and Nina Fainman-Adelman, consultant, Gowling WLG (Canada) LLP Introduction The recent Ontario Superior Court decision, The Estate of William Robert Waters v Gillian Henry et al, 2024 ONSC 4190 (CanLII) (“Waters”) highlighted the importance of medical evidence in estate litigation. In that case, Justice Callaghan relied on the testator’s medical records—specifically, a prescription for an erectile dysfunction drug and a note reading “got a gf”—to find that….

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Estate Litigation

Lam v Law Estate: Gender bias permits variation of discriminatory will

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Today’s blog post was written by Latoya Brown, an Associate at Fasken LLP. The discussion of discriminatory wills continues with a new case out of the British Columbia Supreme Court. In Lam v Law Estate, 2024 BCSC 156, the court varied a testatrix’s will on the reasoning that the testatrix’s bias did not meet contemporary standards of fairness. The testatrix was survived by her two independent adult children, her son….

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Capacity Law, Caregiving, Compensation, Contested wills, Courts, Dependant Support, Elder Law, Estate Administration, Estate Administration and Probate Applications, Estate Litigation, Estate Planning, Family Conflict, Succession Planning, Uncategorized, Wills

Case Comment: Huang v. Nie, 2024 ONSC 2398

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As many of our readers may know, estate trustees have a duty to account to the beneficiaries of an estate for the property they administer. Beneficiaries are entitled to be kept informed and can reasonably expect transparency and communication from the estate trustee in this regard. Oftentimes, an estate trustee will deliver accounts to beneficiaries to demonstrate what funds have come into the estate, and what funds have been paid….

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Estate Administration, Estate Litigation, Executors, Family Conflict, Passing Of Trustees’ and Executors’ Accounts, Trustee, Uncategorized

Waters v Henry: Respecting a Testator’s Free Will to Make “Bad” Decisions

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Irina Samborski, associate and Caroline Mercer, articling student, Gowling WLG (Canada) LLP When an estate is litigated, a deceased person’s decision-making is forced into the public record. Sometimes, the court is asked to pass judgement and correct decisions that may seem unreasonable or unfair. However, some courts prefer to uphold the deceased’s freedom to decide—no matter what the living may think. This was the case in The Estate of William….

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Contested wills, Courts, Estate Litigation, Estate Planning

Testamentary Fraud

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Undue influence, a common claim to be heard in the context of will challenges, occurs when a testator is forced or coerced into changing his or her will or creating a new one in favour of the coercing party. A closely related concept is testamentary fraud. Although testamentary fraud does not involve direct coercion, legal scholars consider it to be a subset of undue influence. Like ‘regular’ undue influence, the….

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Contested wills, Estate Litigation, Undue influence
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