Estate Litigation

Total 418 Posts

A long, long time ago…

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Some stuff happened, and now people are fighting about what exactly happened. To find out what happened, evidence is needed. In estate litigation, there are special principles and rules of evidence along with the usual ones to be considered. The recent case of Koutsovasilis v. Carreira, provides a useful summary of some of these. The Facts The case involved a dispute over ownership of a property between a woman by….

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Credibility, Estate Litigation

Not All Questions Are Appropriate for an Advice, Opinion or Directions Application: Discretion Must be Exercised by the Trustee, and not by the Court

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Anna Chen, Associate, Gowling WLG (Canada) LLP Often, estate trustees or trustees apply to the court for its opinion, advice or direction in respect to issues in the administration of the estates or trusts.  The questions put to the court may range from the interpretation of a clause in a testamentary instrument or questions as to whether the estate trustee or trustee has the authority to carry out certain steps….

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Estate Litigation

I Would Like Exculpatory Clauses and a Side of…

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Exculpatory clauses or indemnity clauses in wills and trusts are common forms of protection provided to the trustees by testators and settlors. When a trustee is appointed under a testamentary or inter vivos trust document to administer and manage an estate or a trust, some consider it to be an honour and a privilege.  Unfortunately, the reality of the office of the trustee is often fraught with inexperience, lack of….

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Estate Litigation, Estate Planning, Executors, Wills

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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