Estate Litigation

Total 411 Posts

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

Why Should it Come Out of My Share of the Estate?

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Often when an estate is involved in litigation to address the conduct of an uncooperative beneficiary, the other beneficiaries expect that the estate trustee’s court costs will be paid from the share of the “problem” beneficiary.  However, as lawyers like to say “it depends.” In a recent Ontario case, an estate trustee brought a court application seeking immediate access and the vacant possession of the Deceased’s house, the primary asset….

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Estate Litigation

Who holds the burden of proof when undue influence is claimed?

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A man photographs seagulls.

In the estates context, undue influence is often alleged in order to challenge a will or an inter vivos transfer of property, often a family home or cottage. When a party in a legal dispute alleges that there was undue influence which party bears the burden of proving (or disproving) whether this is true? Will challenges Generally speaking, if a will meets the criteria for formal validity, it will be….

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Elder Care, Estate Litigation, Joint Tenancy, Power of Attorney, Succession Planning, Testamentary Capacity, Undue influence, Wills

Dependant and non-dependant beneficiaries

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One kind of claim that estate litigators often bring against an estate is a claim for dependant’s support. These claims are made pursuant to Part V of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), and are commenced by way of application. The core of such a claim is that the deceased testator did not provide adequately for a dependant, whom the deceased was supporting prior to….

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Dependant Support, Estate Litigation

When Parent and Child have a Joint Bank Account: Who Receives Funds upon Parent’s Death?

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This blog has been written by Lily MacLeod [Associate] at Fasken LLP It is common for an elderly parent to set up a joint bank account with their adult child. This enables the child to help manage the parent’s finances freely and efficiently (either as the parent’s attorney for property or more informally). Some families may assume that title to the account funds will pass to the adult child by….

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Elder Law, Estate Administration, Estate Administration and Probate Applications, Estate Litigation, Estate Planning, Guardianship, Resulting Trust, Succession Planning, Trusts, Wills
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