Estate Litigation Blog

What’s the “issue” with not updating your will?


by Matthew Rendely, Published: May 16, 2017

Tags: children born outside of marriage,  estate litigation,  issue,  wills

How not regularly updating your will can have unexpected consequences.  

Top 5 Wills, Trusts and Estates Boutiques in Canada


by Robin Spurr, Published: January 10, 2017

Tags: canadian lawyer,  estates,  top 5,  trusts,  wills

We are very pleased to announce that Schnurr Kirsh Oelbaum Tator LLP has once again been recognized as one of the Top 5 Wills, Trusts and Estates boutiques in Canada.  We appreciate the ongoing support of our peers in the legal community across Canada, and look forward to continuing to serve our clients in an effective, pragmatic and personable manner. 

Mutual Wills v. Mirror Wills


by Robin Spurr, Published: December 05, 2016

Tags: case comment,  estate litigation,  mirror wills,  mutual wills,  wills

A commentary on the mutual will doctrine and how it was applied in two recent cases, with very different results.

Costs in Will Challenge Litigation


by Rob Levesque, Published: September 11, 2016

Tags: costs,  estate,  litigation,  will challenge

It is well-settled that in estate litigation the unsuccessful party must generally pay some of the successful party’s costs – this is often referred to as the “loser pays principle”. 

Importantly however, the loser pays principle is subject to certain exceptions that are unique to estate litigation.   For instance, where there is a genuine dispute about the validity of a will, even an unsuccessful party may be awarded costs out of the estate.  The rationale for this exception is that it is important for the courts to give effect to valid wills that reflect the intentions of competent testators.

That doesn’t mean that the parties to every will challenge should expect that they will receive their costs from the estate, as illustrated by the recent case of Sweetnam v. Lesage.  In that case, the testator had left a will disinheriting his daughter, and leaving the entirety of his substantial estate to his fishing buddies.  At the conclusion of a long trial, the court found that the deceased suffered from delusions that caused him to disinherit his daughter.  As a result, the deceased’s will was declared invalid, and his entire estate passed to his daughter.  The fishing buddies received nothing.

When it came to decide the issues of costs, the Court applied the loser pays principle in ordering the unsuccessful party to pay a portion of the daughter’s legal costs.  Moreover, the Court refused to allow the unsuccessful party to recover any of her own costs from the estate.  The Court acknowledged that an unsuccessful party may be awarded costs out of the estate in appropriate cases, but noted that in this case the unsuccessful party had rejected a number of reasonable settlement offers made by the daughter.  Furthermore, since the daughter received the entire estate as a result of the will having been declared invalid, ordering the unsuccessful party’s costs out of the estate would be the same as ordering the daughter to pay the costs personally.   

Estate Planning - Digital Assets


by Mitchell Rattner, Published: September 02, 2016

Tags: digital assets,  estate litigation,  estate planning,  trusts,  wills,  wills and estates

This article looks at "digital assets" and how they may be factored into estate planning.

2016 Amendments to the Income Tax Act – Graduated Rate Estates and Qualified Disability Trusts


by Mitchell Rattner, Published: June 06, 2016

Tags: estate litigation,  estate planning,  estates,  graduated rate estate,  income tax act,  qualified disability trust,  tax planning,  trusts

Amendments to the Income Tax Act that came into effect on January 1, 2016 require testamentary trusts to be taxed at the highest marginal rate, but for two exceptions: the Graduated Rate Estate and the Qualified Disability Trust.

Capacity to Enter into Contracts


by Robin Spurr, Published: April 25, 2016

Tags: capacity,  contract law,  estate litigation,  guardianship,  incapacity,  power of attorney

Incapable adults can be vulnerable to scam artists and people seeking to take advantage of them for their own personal gain.  There are legal ramifications for this, and steps you can take to prevent it.

Court of Appeal overturns "racist will" decision


by Rob Levesque, Published: March 08, 2016

Tags:

Last year we blogged about Spence v. BMO Trust Company, a case that was causing a sitr in the estates and trusts bar.  

In Spence, the testator made a will that explicity disinherited his daughter.  The daugher sought to set aside the will on the grounds that the testator's motives for disinheriting her were fundamentally racist: that the testator, who was black, disinherited her because he was displeased that she had conceived a chlld with a white man.   The judge who heard the daughter's application accepted that the testator had been motivated by his racist views, and held that this evidence was sufficent to render the will invalid, marking the first time in canadian legal history that a will has been set aside on the basis of discriminatory views held by a testator.

The application judge's decision caused such a commotion among estates lawyers because it contradicted the well established principle of testamentary freedom -- that a testator is free to dispose of his estate as he chooses, for such reasons as he sees fit.  If the application judge was correct, then it would mean that testamentary freedom  is limited by the Court's view of what is or is not against "public policy".  

The Court of Appeal has now weighed in on the Spence case, and has overturned the application judge's decision.  In doing so, the Court reaffirmed that in Ontario, testators have the freedom to dispose of their estate as they see fit.  This freedom includes the right to disinherit a child for reasons that are explicitly discriminatroy. Thus, the Court held that, even if the testator's will had explilcity referred to a discriminatory reason for disinheriting his daughter, it would not have been open to the application judge to set it aside.  

Best Lawyers


by Jovan Cvejic, Published: December 23, 2015

Tags:

Schnurr Kirsh Oelbaum Tator LLP is proud to announce that once again our partners have been recognized by their peers in the 2016 Edition of The Best Lawyers in Canada in the practice area of Trusts and Estates.

Costs Award Against Power of Attorney Personally


by Robin Spurr, Published: November 06, 2015

Tags: bad faith,  costs,  estate litigation,  fiduciary duty,  litigation,  power of attorney

A recent Court of Appeal decision made it clear that when Attorneys for Property are faced with contentious family disputes, they must remember that their fiduciary obligation in litigation is not solely a question of financial benefit for the incapable person.  Rather, the Attorney must consider what is in the person’s best interests overall, which may include mending family ties and settling at an early stage.  Otherwise, unreasonable conduct could result in the Attorneys finding themselves personally liable for the legal costs.

Applications and Actions: dismissal for delay


by Robin Spurr, Published: September 19, 2015

Tags:

In an effort to streamline the litigation process and free up much needed court resources, the Rules of Civil Procedure were amended as of January 1, 2015 to provide that the Registrar shall dismiss an action if it has not been set down for trial within 5 years.

Schnurr Kirsh Oelbaum Tator LLP is heading east!


by Jovan Cvejic, Published: March 06, 2015

Tags: bowmanville,  estate litigation,  shnurr kirsh oelbaum tator

We congratulate our friend and former colleague Susan Woodley on her judicial appointment to the Ontario Superior Court of Justice.

We are pleased to announce that Schnurr Kirsh Oelbaum Tator LLP will take over carriage of Susan’s Estate, Trust and Guardianship practice.  We will have an additional office at 55 Temperance Street, Bowmanville, Ontario.  We look forward to serving the community of Bowmanville and the County of Durham. 

Spence v. BMO Trust Company: the case of the racist father


by Robin Spurr, Published: February 27, 2015

Tags: estates,  public policy,  wills

The recent decision in Spence v. BMO Trust Company raises very interesting questions about testamentary freedom and the power of the courts to remedy wills which contravene public policy.

Top 5 Wills, Trusts and Estates Firms in Canada


by Jovan Cvejic, Published: January 30, 2015

Tags: boutique law firm,  canadian lawyer magazine,  estate litigation,  estates,  top 5,  trusts,  wills

We are very excited to announce that Schnurr Kirsh Oelbaum Tator LLP has been named one of the Top 5 Boutique Wills, Trusts and Estates firms in Canada by Canadian Lawyer magazine!  The list is compiled and voted on by lawyers across Canada.  We are grateful to our peers for the recognition and honoured to have earned their confidence. 

Quinn v. Carrigan: "No litigation outcome is inevitable"


by Rob Levesque, Published: November 15, 2014

Tags: dependant support,  dependants,  estate,  estate litigation,  succession law reform act

It can be comforting to think of the law as an objective system that produces consistent, predictable results.  However, judges aren't computers, and different judges can interpret the same facts and the same law in different ways, producing totally different outcomes. 

It can be particularly difficult to predict the outcome of a dependant support application brought under Part V of the Succession Law Reform Act.  Determining what constitutes "adequate support" of a dependant spouse or child is not an exact science, and raises questions that don't have easy answers.  How do you place a value on a spouse's relationship with the deceased?   How can you treat the deceased's dependants and other family members equitably, having regard to their legal and moral claims against the estate?  While judges have developed various rules and principles that apply to dependant support claims, the fact remains that different judges will reach different conclusions based on the same facts and law. 

The recent case of Quinn v. Carrigan 2014 ONSC 5682 is a perfect example of this phenomenon. 

The late Mr. Carrigan left assets with a total value of approximately $2.4 million to his wife https://www.canlii.org/en/on/onscdc/doc/2014/2014onsc5682/2014onsc5682.pdfand two children, and nothing to his common law spouse of eight years, Ms. Quinn.  Not surprisingly, Ms. Quinn retained a lawyer and made a claim against Mr. Carrigan's estate for dependant support.  Ms. Quinn's claim went to trial, and the Court concluded that she was entitled to receive the deceased's pension death benefit, worth about $1.4 million.  

The deceased's wife appealed the Court's judgment to the Court of Appeal.  The Court of Appeal found that the trial judge had erred in concluding that Ms. Quinn was entitled to the death benefit, and accordingly ordered a second trial of her dependant support claim.  At the end of the second trial, the Court concluded that Ms. Quinn was entitled to a lump sum payment of $350,000.00.  

Ms. Quinn appealed the second judgment to the Divisional Court.  The Divisional Court held that the judge in the second trial had erred in calculating Ms. Quinn's spousal support payment.  However, rather than ordering a third trial, the Divisional Court conducted its own analysis of the dependant support claim, ultimately concluding that Ms. Quinn was entitled to a lump sum payment of $750,000.00.

In the end, Ms. Quinn had three separate hearings to determine her entitlement to a share of the deceased’s estate, and got three very different results.  The lesson for potential litigants is clear.  As expressed by Justice Corbett, who delivered the reasons of the Divisional Court in this case:  "no litigation outcome is inevitable".    

What you need to know before starting a will challenge: Leibel v. Leibel


by Robin Spurr, Published: November 07, 2014

Tags: estate litigation,  estates and trusts summit,  felice kirsh,  leibel v. leibel,  will challenge

There has been a lot of buzz in the legal community recently about the case of Leibel v. Leibel (reported as Leibel v. Lewis), which was decided by the Honourable Justice Greer in August of this year.  The reason for all the legal chatter is that this case clarified whether there is a limitation period on will challenges. It turns out, according to Justice Greer, that the regular two-year limitation period set out in the Limitations Act, 2002 applies equally to will challenges as it does to any other civil litigation.

Do the claims of dependants have priority over the claims of other creditors?


by Rob Levesque, Published: October 15, 2014

Tags: creditors,  creditors' relief act,  dependant support,  equalization,  estate administration,  estate trustees,  estates

In the administration of any estate, one of the estate trustee's first jobs is to identify potential creditors who might advance claims against the estate.  The general wisdom has always been that an estate trustee should make sure that he or she has held back sufficent funds from the estate to satisfy the claims of all potential creditors before making distributions to the beneficiaries, heirs and dependants of the estate.  It may therefore come as a surprise to many lawyers that in a recent case, Grieco v. Grieco Estate, 2013 ONSC 2465, the Court held that dependant support claims have priority over the claims of potential creditors with pending, but unproven claims.

In the Grieco case, the deceased’s ex-wife had an outstanding equalization claim against the deceased’s estate which pre-dated his death.  The deceased’s common law spouse and two of the deceased’s adult children bought dependant support claims against the estate.  The parties settled their claims at mediation, and obtained a consent judgment providing for the distribution of lump sum equalization and dependant support payments.  

The estate trustee was wary of making the payments pursuant to the consent judgment because a number of potential creditors had come forward with claims against the estate.  While the claims of the creditors had yet to be proven, if the estate trustee proceeded with the distribution of the dependant support and equalization payments pursuant to the consent judgment, there would be no money left in the estate to satisfy a possible judgment against the estate by the creditors.  Accordingly, the estate trustee sought the direction of the Court.

The Court held that the lump sum equalization payment to the ex-wife and the lump sum dependant support payment to the common law spouse took priority over the claims of the potential creditors.  In doing so, the Court referred to section 4(1) of the Creditor’s Relief Act, 1990 and Section 2(3) of its successor legislation the the Creditor’s Relief Act, 2010.  The Court held that both the 1990 Act and the current Act, “maintain the priority of support claims over virtually all other claims”, and that this priority extended to dependant support orders made pursuant to the Succession Law Reform Act.  Accordingly the common law spouse was entitled to recieve her lump sum payment from the estate in priority to the potential creditors.

Furthermore, given that orders made for the support of dependants have priority over debts owing to creditors under section 2(3) of the Creditors' Relief Act; and given that a spouses’ equalization entitlement has priority over orders for the support of dependants other than children of the deceased under subsection 6(12) of the Family Law Act; the Court concluded that the ex-wife’s  equalization payment also had priority over the claims of the potential creditors.  The Court found that the wife was also a dependant of the estate and was entitled to receive her lump sum payment in priority to the creditors on that basis as well.

The Grieco case raises difficult issues for trustees facing competing claims by surviving spouses, dependants of the estate, and other potential creditors of the estate. While the case appears to stand for the proposition that the claims of dependants have priority over the claims of other potential creditors of the estate pursuant to the Creditor’s Relief Act, lawyers who are advising estate trustees should treat the decision with caution.  There are currently no other reported cases dealing with the interaction between the Creditors' Relief Act and equalization and support claims in the estates context.

Estate Administration and Automatic Vesting


by Robin Spurr, Published: October 03, 2014

Tags: automatic vesting,  estate administration,  estate litigation,  estate trustees,  estates,  estates administration act,  mortgage

Automatic vesting is often an illusory concept and almost always comes as a surprise to the lay estate trustee. The rule as set out in the Estates Administration Act (EAA) is that real property vests in the beneficiaries three years after the death of the testator. Vesting means taking ownership of something.  Sometimes a gift is vested only in interest before someone actually takes possession of it. When an interest vests, that is the moment someone has a legal claim of ownership.  Once a property vests in the beneficiary, the beneficiary becomes the owner of the property even if it is still technically registered in the name of the deceased person or the estate trustee. After the property becomes vested in the beneficiary, the estate trustee is limited in what he or she can do with the property.

Elizabeth Bozek to Chair OBA program "Complex Passing of Accounts"


by Robin Spurr, Published: October 03, 2014

Tags: elizabeth bozek,  estate litigation,  estates,  ontario bar association,  passing of accounts

Elizabeth Bozek will be the Chair of the Section Program presented by the Ontario Bar Association, Estates & Trusts Section, on November 25, 2014 on "Complex Passing of Accounts". The panel will review how estate litigators should approach complicated passing of accounts by estate trustees and how to avoid the pitfalls that can come with complex estate administrations.

Jordan Oelbaum speaks about the discovery process at Osgoode Hall Law School


by Robin Spurr, Published: September 25, 2014

Tags: conferences,  discovery,  estates,  jordan oelbaum,  mediation

On September 24, 2014, Jordan Oelbaum spoke at "Managing, Mediating and Litigating Estates Disputes", a conference held at Osgoode Hall Law School.  In his paper, "Discovery and Settlement in the Estate Case: Preparing for Settlement", Jordan explores the discovery and settlement processes in light of the Court's recent comments on the need for proportionality in estates cases.

Felice Kirsh speaks to financial advisors about best practices


by Rob Levesque, Published: September 18, 2014

Tags: estate litigation,  estates,  felice kirsh,  financial advisors

On September 16, 2014, Felice Kirsh gave a talk to a group of financial advisors at CIBC Wood Gundy titled "Keeping the Financial Advisor Out of Litigation".  Topics covered included taking instructions from clients; the importance of keeping a well-documented file; and ensuring that advice given is limited to the advisor's field of expertise.

Best Lawyers for 2015


by Rob Levesque, Published: September 17, 2014

Tags: best lawyers,  brian schnurr,  felice kirsh,  jordan oelbaum,  sender tator

Brian Schnurr, Felice Kirsh, Jordan Oelbaum and Sender Tator have each been recognized by their peers as being among the Best Lawyers in Canada in the specialty area of Estates and Trusts for the year 2015, in the Best Lawyers in Canada survey.

Felice Kirsh to chair conference at Osgoode Hall Law School


by Rob Levesque, Published: September 17, 2014

Tags: conference,  estate litigation,  estates,  felice kirsh,  mediation,  osgoode hall

On Septermber 24, 2014, Felice Kirsh will chair a conference at Osgoode Hall Law School, titled "Managing, Mediating and Litigating Estates Disputes".  The conference will cover all stages of an estate litigation matter, from the initial client interview, to discovery, to mediation to trial.

Parents have testamentary freedom


by Rob Levesque, Published: September 08, 2014

Tags: estate planning,  felice kirsh

Felice Kirsh was recently quoted in an article on Advocatedaily.com.  In "  Wealthy or not, parents have testamentary freedom"  , Felice advises parents to consider the size of their estate and the financial situation of each child when planning their estates. 

Pro Bono Students Canada's Wills Project


by Rob Levesque, Published: May 15, 2014

Tags: estates,  sandra schnurr,  wills

Sandra Schnurr recently completed another rewarding year of supervising law students in the Wills Project of Pro Bono Students Canada.  These future lawyers volunteer their time to provide wills and powers of attorney to qualifying members of the public.

Leading practitioners


by Rob Levesque, Published: April 16, 2014

Tags: brian schnurr,  felice kirsh,  jordan oelbaum,  sandra schnurr

Brian Schnurr, Felice Kirsh, Sandra Schnurr and Jordan Oelbaum has each been recognized as a "Leading Practitioner" in the field of Estate Litigation in the 2014 edition of the Canadian Legal Lexpert Directory.

Choose a power of attorney you trust


by Rob Levesque, Published: April 14, 2014

Tags: felice kirsh,  fraud,  powers of attorney

Felice Kirsh was recently quoted in an article on AdvocateDaily.com. In "Choose a power of attorney you trust",  Ms Kirsh explains that the first step in avoiding power of attorney fraud lies in who you appoint to take on the role.  Continue reading here.

Elizabeth Bozek chairs seminar on the Consent and Capacity Board


by Rob Levesque, Published: February 26, 2014

Tags: consent and capacity board,  elizabeth bozek

On February 25, 2014, Elizabeth Bozek chaired the a seminar entitled "Backgrounder on the Consent and Capacity Board", which was part of the Ontario Bar Association's Trusts and Estates Passport Series.  Topics covered included:the role of the Consent and Capacity Board ("CCB"); the type of cases that appear before the CCB; tips on advocacy before the CCB, including how files are referred; and a review of recent decisions from the CCB, including the highly anticipated Rassouli decision from the Supreme Court of Canada.


 

Consider whether a passing of accounts is worth it


by Rob Levesque, Published: February 04, 2014

Tags: beneficiaries,  compensation,  estate trustees,  passing of accounts

Felice Kirsh was recently quoted in an article on AdvocateDaily.com. In "Consider whether a passing of accounts is worth it",  Ms Kirsh emphasizes that beneficiaries of an estate should take time to consider, from a monetary point of view, what’s at stake before insisting on a passing of accounts.  Continue reading here.

Best Lawyers for 2014


by Rob Levesque, Published: February 01, 2014

Tags: best lawyers,  brian schnurr,  estate,  felice kirsh,  jordan oelbaum,  trusts

Brian A. Schnurr, Felice C. Kirsh and Jordan D. Oelbaum were recently recognized by their peers as three of the Best Lawyers in Canada for the year 2014 in the "Best Lawyers in Canada" survey for the specialty area of Trusts and Estates.

When estate litigation gets tense, lawyers must stay cool


by Rob Levesque, Published: December 11, 2013

Tags: estates,  litigation

Felice Kirsh was recently quoted in an article on AdvocateDaily.com.  In "When estate litigation gets tense, lawyers must stay cool", Ms. Kirsh explains that when an estate litigation scenario becomes heated or tense, it is incumbent upon the lawyer to remain calm and level-headed.

“The vast majority of cases are highly emotional because you’re dealing with family members. Family relationships are complex ­– they’ve lasted for many, many years,” says Kirsh. “There might be built-up tensions, grudges or jealousies that manifest themselves in this last battle over someone’s estate.” Continue reading here.

Bar Admissions Fall 2013


by Rob Levesque, Published: October 29, 2013

Tags:

 Sandra Schnurr will be instructing the Wills/Estates/Trusts Bar Exam Prep Course offered by the "Centre for the Legal Profession" and the "Internationally Trained Lawyers Program" at the University of Toronto, Faculty of Law. The Wills/Estates/Trusts course will be offered on Monday, November 11, 2013 at the University of Toronto, Faculty of Law, from 5:30 - 10:00pm. The full schedule can be found here, and instructor biographies are found here.

Brian Schnurr, Felice Kirsh and Jordan Oelbaum named to Best Lawyers 2013


by Robin Spurr, Published: December 20, 2012

Tags: best lawyers,  brian schnurr,  felice kirsh,  jordan oelbaum

Brian A. Schnurr, Felice C. Kirsh and Jordan D. Oelbaum were recently recognized by their peers as three of the Best Lawyers in Canada for the year 2013 in the "Best Lawyers in Canada" survey for the specialty area of Trusts and Estates.

OBA Estates and Trusts Dinner


by Jovan Cvejic, Published: May 30, 2012

Tags: estates list,  trusts and estates toronto

Last night, the Ontario Bar Association hosted the annual Estates and Trusts Awards Dinner. The Honourable Madam Justice Greer was the recipient of the OBA Award for Trusts and Excellence in Trusts and Estates.  In her acceptance speech, Justice Greer inspired the attendees with her thoughts, and asked everyone to do the following: be brief in submissions in court; be a mentor to those more junior than you; and be kind. 

Schnurr Kirsh Oelbaum Tator LLP was a Gold Sponsor of the event, which was held at the Distillery District in Toronto.

Trust Company Best Practices


by Rob Levesque, Published: January 26, 2012

Tags: estates,  felice kirsh

On January 24, 2012, Felice Kirsh made a presentation on "Trust Company Best Practicies - How to Manage Client Expectations & Reduce Risk" at CIBC Trust.  

Brian Schnurr and Felice Kirsh named to Best Lawyers 2012


by Robin Spurr, Published: September 28, 2011

Tags: best lawyers,  brian schnurr,  felice kirsh

Brian A. Schnurr and Felice C. Kirsh were recently recognized by their peers as two of the Best Lawyers in Canada for the year 2012 in the "Best Lawyers in Canada" survey for the specialty area of Trusts and Estates.

Best Lawyers Awards Brian A. Schnurr 2011 Lawyer of the Year, Trust and Estates - Toronto


by Robin Spurr, Published: April 23, 2010

Tags: best lawyers award,  brian schnurr

Brian A. Schnurr has been designated as 2011 Best Lawyers, Trust and Estates - Toronto.  Only a single lawyer in each practice area is awarded this honour.

Recent Posts

Tags