Testamentary Capacity

Total 43 Posts

Forensic Profile of Perpetrators of Financial Elder Abuse

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Financial elder abuse is defined by the World Health Organisation as the illegal or improper exploitation or use of funds or resources of the older person.[i] The misuse of a senior’s funds and assets involves the use of the senior’s funds without that senior’s knowledge and/or full consent, or, in the case of a senior who is not mentally capable, when the use of funds is not in that senior’s….

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Capacity Law, Elder Care, Elder Law, Estate Litigation, Family Conflict, Fiduciary Professions, Geriatric Care Management, Guardianship, Powers Of Attorney and Guardianship Disputes, Testamentary Capacity

Meeting the Will Challenge Threshold

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Today’s blog was written by Christina Papadopoulos, an articling student with de VRIES LITIGATION LLP. What is the minimum level of evidence to be met before a court allows a will challenge to proceed? The recent Ontario Superior Court of Justice decision in Naismith v. Clarke, 2019 ONSC 5280 (“Naismith”) sets out a useful overview for the circumstances under which a court may allow a will challenge to move forward…..

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Contested wills, Estate Litigation, Testamentary Capacity, Wills

Trusts and Trust Resettlements – Variations and Circumstances

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Variation(s) of a trust agreement, after it is settled, does carry the risk of causing a resettlement of a trust or a disposition of a beneficiary’s interest in the trust, with serious tax consequences. But not all variations lead to resettlement, fortunately. Recently in an advance ruling, the Canada revenue Agency (“CRA”) was asked to consider whether a trustee seeking to amend a trust agreement for the appointment of the….

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Canada Revenue Agency, Disability, Estate Administration, Executors, Guardianship, Spouse, Tax Issues, Testamentary Capacity, Trustee, Trusts, Uncategorized

Some Thoughts on Explaining Differences in Expert Opinions

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Experts giving evidence in an Ontario court are obliged to sign an acknowledgement that they are independent, with their obligation being to the court and not to the party who retained them. Nonetheless, scepticism regarding objectiveness and discrepancies between expert opinions remains, as demonstrated in the reasons of Justice Mesbur in Plese v. Herjavec, 2018 ONSC 7749: [89]      I have always been tempted to ask valuators whether their opinions would….

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

Estate Applied to Have Filings Made by Taxpayer Lacking Mental Capacity Set Aside

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In Ntakos Estate v. The Queen, 2018 TCC 224, a family business was owned by the deceased taxpayer, Anna (after her husband passed away in 1995) with two brothers-in-law through a holding corporation. Anna’s mental and physical health declined from 1995 until her death in 2004. She was diagnosed in 2002 with cancer, and apparently lacked mental capacity after that date. In 2003, the accountant for the family business got….

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Canada Revenue Agency, Capacity Law, Estate Administration, Family Conflict, Investments, Property, Small Business, Spouse, Tax Issues, Testamentary Capacity, Uncategorized

Is it Improper for Counsel to Assist an Expert Witness in the Preparation of the Expert’s Report?

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Expert evidence constitutes an exception to the rule that witnesses may only testify as to facts, not opinions, and that it is the exclusive prerogative of the trier of fact to draw inferences from proven facts. The expert evidence exception operates where specialized knowledge is required to determine the implications of the facts where the trier of fact is not competent to draw the necessary inferences unaided. The Rules of….

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Estate Litigation, Testamentary Capacity
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