Estate Litigation Blog

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 and 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.

This case concerned a will challenge commenced by the son, Blake, more than two years after his mother, Eleanor, had died.  Blake was an adult and lived in California.  Eleanor had another a son, Cody, who was also an adult and living in California.  Eleanor was married to Lorne, but they had been separated for 30 years at the time Eleanor died.  When they separated, Cody went to live with Lorne and Blake lived with Eleanor. 

In previous wills, Eleanor had left her considerable estate solely to Blake.  In her last will, and the one immediately preceding it, Eleanor gave the majority of her estate to Blake, but included a sizeable inheritance for Cody.  Blake contested Eleanor’s last will on the grounds that his mother was unduly influenced and/or lacked capacity to make the will.  Eleanor died in June 2011, and Blake commenced his application in September 2013.  Justice Greer ultimately held that Blake’s claim was out of time as it was more than two years after Eleanor’s death.

There has been a lot written about this decision and how it reconciles with past decisions and what this means going forward. These are all interesting and relevant discussions to have, but I think it is also important to look not just at the law of this case but also the facts and how they contributed to the outcome of the case.

At the recent 17th Annual Estates and Trusts Summit, Felice Kirsh spoke to estates practitioners about the Leibel case and highlighted why this particular fact pattern made it the prime case for this ruling.  First and foremost, Blake did not attend his mother’s funeral.  This is very poor form, especially when you then go before the court claiming that you did not get enough money from your mother’s estate. As Felice said, this is not the way to get the court’s sympathy.  Secondly, Blake was active in helping the estate trustees liquidize estate assets in order to receive cash from the estate.  He actively participated in the selling of Eleanor’s Toronto home and a condo in Florida, both of which were gifted to him in the will, and he accepted the several millions of dollars that the properties sold for.  While there is the legal issue of estoppel that comes into play as result of these actions, it is also just common sense that you should not take everything you can from the estate and then turn around and ask the court to set aside the will because you would now like some more.

These facts were obviously not favourable for Blake and likely worked against him in this case.  The moral of the story is that if you are going to challenge a will, make sure you do it within two years of the death of the testator, and always go to the funeral.  

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 had priority over the claims of the potential creditors.  Alternatively, 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.

In the recent Ontario Court of Appeal decision of Di Michele v. Di Michele 2014 ONCA 261, the court clarified the circumstances in which automatic vesting will occur. This was a case of an estate trustee (who was also a beneficiary) who mortgaged the estate property to secure his personal debts more than three years after the death of the testator. The estate trustee’s creditor applied to enforce the mortgage and sell the estate property. The other estate beneficiaries tried to block the sale of the estate’s real property by the creditor in the enforcement proceedings on the grounds that the estate trustee had no right to give the mortgage to his creditor in the first place, arguing that the property had vested in them.

At trial, the Court agreed with the beneficiaries that the property had vested in the them pursuant to the EAA and therefore the mortgage was only enforceable against the estate trustee’s 1/3 interest in the property, and not the other 2/3 which had vested in the other two beneficiaries. However, on appeal, the Court overturned this finding. The Court of Appeal held that the mortgage applied to the entire property.

The Court of Appeal concluded that when a will includes a clause allowing the estate trustee to postpone the sale of property or to deal with property as the estate trustee sees fit, as many standard wills do (and this will in fact did), the automatic vesting provisions of the EAA do not apply.  If they did, it would limit the power given to the estate trustee in the will to use his discretion to deal with the property, and court is not inclined to do that. The rationale being that section 10 of the EAA states that nothing in the legislation should interfere with the powers given to the estate trustee in the will.

Secondly, the Court decided that only a beneficiary who is specifically gifted property by a testator in his will benefits from automatic vesting. The Court of Appeal held that a residuary interest (even in an estate that has real property in the residue) is not enough of an interest in the property for automatic vesting to apply.  The beneficiary can only claim a property interest if the will gives the particular property to the beneficiary as a specific gift.

What we can take away from this case is that automatic vesting is not as widely applicable as we once thought.  A will can be drafted to prevent the automatic vesting from occurring and prevent the unsuspecting estate trustee from being caught by the rule during a difficult or lengthy administration.

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 passings of accounts by estate trustees and how to avoid the pitfalls that 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 Schurr, 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 consder the size of their estate and the financial situation of each child when planning their estates.

Sandra Schnurr: Recent case highlights insufficient community supports for incapable persons


by Rob Levesque, Published: May 30, 2014

Tags: incapacity,  sandra schnurr,  substitute decisions act

Sandra Schnurr’s letter to the editor appeared in a recent edition of the Toronto Star, commenting on the Ontario Superior Court of Justice decision of Ciccone v. Côté 94 E.T.R. (3d) 106. The case involves a bitter custody battle between the parents of a 42-year-old developmentally disabled woman who has the mentality of a 6-year-old. Despite their animosity, the parents agree on one point: the best place for their daughter is a group home.

However, the judge notes that, “Isabella has been on a wait list for group home placement dating back to 2008. Inadequate funding by the government of Ontario has created insufficient capacity of this form of community support across the province resulting in wait times of between 5 and 15 years. The evidence is that there are currently 19,000 people waiting for such group home accommodation across Ontario.”

In view of the upcoming provincial election, Sandra’s letter challenges the party leaders to address the desperate shortage of group home space that is so urgently needed by our most vulnerable citizens.

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.

Dealing with difficult clients


by Elizabeth Bozek, Published: August 24, 2013

Tags: estates,  felice kirsh,  trusts,  trusts and estates toronto,  wills

An article about Felice Kirsh was posted on AdvocateDaily.com. In "Red flags help identify difficult clients early on", Ms Kirsh comments on how a lawyer can idenitify signs to determine if he or she should continue working with a difficult client. In the article, Ms. Kirsh suggests that: "When the client’s not following your instructions, when the client is second-guessing you all the time, when the client is making demands on you that just cannot be met … Sometimes the personalities just don’t match"

Ms Kirsh also advises that, "You have to really be sure the client realizes that you’re not doing this work anymore, and they’d better go get another lawyer because they have a court date in three weeks, or they have to get ready for discovery or the next step."

Ms. Kirsh's comments were first published in The Lawyers Weekly, at "Saying goodbye to the difficult client".

A reminder to check your estate plans


by Elizabeth Bozek, Published: July 17, 2013

Tags: estates,  felice kirsh,  trusts,  trusts and estates toronto,  wills

An article about Felice Kirsh was posted on AdvocateDaily.com. In "Case a reminder to review estate plans", Ms Kirsh comments on the recent decision in Stevens v. Fisher. Justice DiTomaso ordered that a life insurance policy that had been owned by the deceased be given to his common-law spouse, and not the named beneficiary (the deceased's former common-law spouse). In the article, Ms. Kirsh is quoted as stating as follows:

“People do forget that they have old insurance policies – I’d say that’s common - and they forget who their beneficiaries are in all policies."

Ms Kirsh is also quoted as further stating, "That’s why it’s important for people to check – I’d say every year – who are the beneficiaries of your RRSP or your life insurance policy or your group life insurance policy and are you still OK with it?”

Ms. Kirsh's comments were first published in the Law Times, at "Court sends message about hiding from dependants".

Difficulty in removing estate trustees


by Elizabeth Bozek, Published: March 19, 2013

Tags: estates,  felice kirsh,  trusts,  trusts and estates toronto,  wills

An article about Felice Kirsh was posted on AdvocateDaily.com. In "Decision reinforces difficulty removing estate trustees", Ms Kirsh comments on the recent decision in Hawkins v. Hawkins Estate. The Master refused to remove the estate trustee and noted that:

"In short it is the duty of the court to ensure the purpose of the trust is carried out and the testator's choice of trustes should not be lighly disturbed. Removal is essentially a last resort in cases where it can be shown that continuation in office will inevitably impede proper administration."

The decision provides a useful guideline in determining if a motion for removal of an estate trustee will be successful.

Appointed attorneys have a difficult job


by Elizabeth Bozek, Published: March 19, 2013

Tags:

An article about Felice Kirsh was posted on AdvocateDaily.com. In "Appointed attorneys have difficult job", an article Ms Kirsh wrote in The Lawyers Weekly, "Attorneys for property often under the microscope", was discussed in detail. This article was previously discussed on this blog; the blog post can be found here.

Attorneys for property often under the microscope


by Elizabeth Bozek, Published: March 18, 2013

Tags: accounts,  attorney,  estates,  felice kirsh,  powers of attorney,  trusts,  trusts and estates toronto,  wills

Felice Kirsh authored an article published in the March 1, 2013 edition of The Lawyers Weekly. In "Attorneys for property often under the microscope", Ms Kirsh discusses the responsibilities of an attorney for property, including the duty to manage the incapable person's property in the best interests of that person, and the duty to keep accounts. Ms Kirsh also suggests individuals who have been named attorneys for property take the job seriously, spend time at the job and document all decisions made, time spent and issues considered.

Bar Admissions Spring 2013


by Elizabeth Bozek, Published: March 18, 2013

Tags:

Elizabeth Bozek 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 Tuesday, June 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.

OBA Section Program - Summary Judgment


by Elizabeth Bozek, Published: February 20, 2013

Tags: estate litigation,  estates

Sender Tator will be the Chair of the Section Program presented by the Ontario Bar Association, Estates & Trusts Section, on April 23, 2013 on "Trusts and Estates Law: Summary Judgment and Other Hot Topics in Estates Litigation". The panel will review how the changes to the summary judgment rules have impacted estate litigation, and the caselaw in this area. The panel will also review recent costs decision and other recent estate litigation cases in general, highlighting topics of general interest to estate litigators.

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 Institute 2013


by Elizabeth Bozek, Published: December 20, 2012

Tags: estates,  guardianship,  mediation

The OBA Institute 2013 for Trusts and Estates Law, "Best Practices, Practical Tips, and Risk Management Strategies for Estate Planning" will be held at the Westin Harbour Castle Conference Centre, 2 Harbour Square, Toronto, on Thursday, February 7, 2013, from 1:30 to 4:50pm. Brian Schnurr will be a panelist during the discussion on "Tips for Success at Mediation".

The panel will discuss the following issues:

  • Professional obligations of counsel going into mediation
  • At which stage should the parties go to mediation?
  • Checklists for a successful mediation
  • What must be in your Minutes of Settlement

Bar Admissions Fall 2012


by Elizabeth Bozek, Published: October 22, 2012

Tags:

Elizabeth Bozek 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 Tuesday, November 20, 2012 at the Moot Court Room in the Flavelle Building, 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.

15th Annual Estates and Trusts Summit


by Elizabeth Bozek, Published: October 17, 2012

Tags: estates,  guardianship

Brian Schnurr and Felice Kirsh will present a paper on November 14, 2012 at the 15th annual Estates and Trusts Summit on the issue of when an individual can be compelled to submit to a capacity assessment against his or her will.  Their paper will review the legislation and jurisprudence relating to court-ordered capacity assessments.

Mediation in estates disputes


by Elizabeth Bozek, Published: July 16, 2012

Tags: estates,  felice kirsh,  trusts,  trusts and estates toronto,  wills

Felice Kirsh can be seen discussing the benefits of medation in estates disputes on AdvocateDailyTV. She notes the benefits of mediation, which include:

     (1) the case will be resolved much sooner than if it were to proceed to trial;

     (2) the client will incur less costs by settling at mediation than proceeding to trial; and

     (3) the parties are free to craft a settlement that may deal with the issues in a more creative way than would a judgment by the court.

Nine out of ten estate litigation cases settle at mediation.

 

OBA Estates and Trusts Dinner


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

Resist 'ruling from the grave'


by Elizabeth Bozek, Published: May 23, 2012

Tags: estates,  felice kirsh,  trusts,  trusts and estates toronto,  wills

Felice Kirsh was quoted in an article published on AdvocateDaily.com, entitled “Resist ‘ruling from the grave’, says Felice Kirsh”.  She cautions testators who may try to exert control over their estates long after they die, and suggests they seriously consider the potential issues arising from ongoing estate administration and the exercise of trustee discretion.   

Bar Admissions


by Elizabeth Bozek, Published: April 30, 2012

Tags: elizabeth bozek,  estates and trusts toronto,  toronto

Elizabeth Bozek 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. Further information about the Prep Course can be found here. The Wills/Estates/Trusts course will be offered on Thursday, June 14, 2012 at the Solarium in Falconer's Hall at the University of Toronto, Faculty of Law, from 6:00 - 10:00pm. The full schedule can be found here, and instructor biographies are found here.

Annotated Guardianship Application


by Elizabeth Bozek, Published: April 27, 2012

Tags: guardianship,  litigation,  sender tator

Sender Tator presented at "The Annotated Guardianship Application 2012", presented at the Law Society of Upper Canada on April 24, 2012. Sender spoke on the annotated Notice of Application and the Management Plan. The seminar was very informative, with the materials providing a practical resource to use in the preparation of applications for both guardianship of the person and guardianship for property.  

Dinner with your Honourable Estates List Judges 2012


by Elizabeth Bozek, Published: April 27, 2012

Tags: estates list,  trusts and estates toronto

Sender Tator chaired the "Dinner with your Honourable Estates List Judges" on April 24, 2012 at the OBA Conference Centre in Toronto. As usual, the dinner was well attended. Those present for the dinner appreciated the comments of The Honourable Madam Justice Pollak, The Honourable Mister Justice Whitaker and The Honourable Madam Justice Wilson,  as they provided practical tips on how to navigate the procedure of the Estates List, and other helpful insights based on their view from the bench. 

Valid holograph will


by Elizabeth Bozek, Published: April 10, 2012

Tags: estates,  trusts,  trusts and estates toronto

 

Elizabeth Bozek wrote a Case Comment that was published in the March 2012 edition of Deadbeat, the newsletter of the Ontario Bar Association, Estates and Trusts section, on the Niziol v. Allen, 2011 ONSC 7457 (CanLII) decision. The court's legal analysis provides a useful summary of numerous grounds upon which the court may judge the validity of a holograph will, including the following:

(1) The holograph will met the requirements of section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26. 

(2) The language used by the deceased was found to be testamentary in nature. 

(3) The holograph will was incapable of standing together with an earlier will because it purported to dispose of all the deceased’s assets.

Corporate trustees


by Elizabeth Bozek, Published: March 26, 2012

Tags: corporate trustee,  estates,  rob levesque,  trustee,  trusts,  trusts and estates toronto,  wills

Rob Levesque will be giving a case comment at the March 27, 2012 OBA Estates and Trusts Section Tax Lunch on Re Young Estate, [2012] O.J. No. 206 (S.C.J.), a case that is noteworthy for its discussion of the functions of a corporate trustee, and the principles that apply to the compensation of corporate trustees.

Uncertainty over trustee reimbursement


by Elizabeth Bozek, Published: March 01, 2012

Tags: accounts,  estates,  felice kirsh,  trusts,  trusts and estates toronto,  wills

Felice Kirsh and Elizabeth Bozek co-authored an article published in the March 2, 2012 edition of The Lawyers Weekly. In "Uncertainty over trustee reimbursement", the correctness of the decision of the Honourable Justice Lofchik in DeLorenzo v. Beresh, [2010] O.J. No. 4367, where he ordered the estate trustee to repay to the estate funds withdrawn to pay his ongoing legal fees, was called into question. This was because of the unreported leave to appeal motion heard by the Honourable Justice Lococo,  who noted that,

“on general principle, it is open to serious debate whether an estate trustee should be ordered to repay legal fees paid by the estate on an interim bass relating to the passing of accounts, including where the accounts are contested by the beneficiaries, as in this case.”

Ms Kirsh was counsel for the estate trustee in the leave to appeal motion. 

Don't rely on an inheritance!


by Elizabeth Bozek, Published: February 29, 2012

Tags: estates,  felice kirsh,  trusts,  trusts and estates toronto,  wills

Felice Kirsh was quoted in an article on AdvocateDaily.com entitled "Don’t rely on inheritance, Kirsh warns baby boomers", in which she advised that baby boomers should not rely on receiving windfalls from family members in their financial planning, but should instead  "Plan your finances as if you're not going to inherit money". The full text of the article can be read here

The Family Cottage


by Elizabeth Bozek, Published: February 17, 2012

Tags: trusts

Felice Kirsh was quoted in an article by Gretchen Drummie entitled "Will Power - Problems can arise over who gets the family cottage", that was included in the 2012 Legal Resource Guide, published in January 2012 by the publishers of Canadian Lawyer magazine. One issue that she notes is that lawyers are increasingly suggesting that parents have a family meeting to discuss how the family cottage will be divided in their estate plan, as the family cottage is a source of a great deal of conflict in estate litigation. 

How to be a good client


by Elizabeth Bozek, Published: February 13, 2012

Tags:

Felice Kirsh can be seen providing advice on how to be a good client and have the best relationship possible with your estate litigation lawyer on AdvocateDailyTV. Her tips include:

  • The client should be organized. At the initial consult meeting, the client should start from the beginning and provide the lawyer with a general overview of the facts. It is especially helpful when the client brings a chronology of the facts, a family tree and/or the court documents. These documents help the lawyer understand the facts and legal issues, and what they can do to help the client.
  • The client should be receptive to the lawyer's advice.
  • The client should understand that there are good and bad aspects of his or her case. 

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. 

Guardianship applications under the SLRA


by Elizabeth Bozek, Published: January 12, 2012

Tags: sender tator

Sender Tator will be presenting a paper at the seminar “  The Annotated Guardianship Application 2012", hosted by the Law Society of Upper Canada on April 24, 2012 at the Donald Lamont Learning Centre, located at 130 Queen St. W. (Law Society of Upper Canada).  His presentation will be on guardianship applications brought under the Succession Law Reform Act.

Dinner with your Honourable Estates List Judges


by Elizabeth Bozek, Published: November 16, 2011

Tags: estates list,  trusts and estates toronto

Sender Tator will be chairing the Dinner with your Honourable Estates List Judges, which will be presented by the Ontario Bar Association on April 24, 2012 at the OBA Conference Centre in Toronto. The Dinner is part of the OBA Trusts & Estates Law Passport series, and is always an interesting evening where the Judges from the Toronto Estates List discuss procedural issues and recent cases in the areas of estate and mental incompetency litigation.

14th Annual Estates & Trusts Summit


by Elizabeth Bozek, Published: November 10, 2011

Tags: estates

Felice Kirsh and Elizabeth Bozek presented a paper entitled "Revisiting Testamentary Capacity" at the 14th Annual Estates and Trusts Summit, hosted by the Law Society of Upper Canada, on November 9, 2011. The Summit was, as always, well attended with many interesting presentations.

Disinheriting the "Black Sheep"


by Elizabeth Bozek, Published: September 29, 2011

Tags: will challenge

Sandra R. Schnurr wrote a helpful Letter to the Editor of the Globe and Mail in response to an article published September 20, 2011, entitled "Baa Baa Black Sheep, Are You In The Will?"  

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.

Preliminary Considerations in Dependant Support Applications


by Elizabeth Bozek, Published: August 23, 2011

Tags: trusts and estate toronto

Jordan Oelbaum will be presenting a paper at the seminar "The Dependant's Support Application: from Notice of Application to Trial", hosted by the Ontario Bar Association on September 27, 2011 at the OBA Conference Centre. His paper will focus on preliminary considerations in bringing a dependant's support claim, including conflict issues, the retainer, limitation periods, and other initial steps and considerations.

"Diminished Capacity" vs "Lack of Capacity"


by Elizabeth Bozek, Published: July 20, 2011

Tags: estates,  testamentary capacity

Brian Schnurr and Felice Kirsh will be presenting a paper at the 14th Annual Estates and Trusts Summit hosted by the Law Society of Upper Canada. Their paper will examine why testamentary capacity should be assessed as existing on a spectrum rather than there being a threshold, and how context can impact a finding of testamentary capacity.

Dependant support obligations for common-law spouses


by Elizabeth Bozek, Published: May 27, 2011

Tags: trust and estates toronto

In the May 2011 edition of Deadbeat, the newsletter of the Ontario Bar Association Trusts and Estates section, is an article by Elizabeth Bozek on Su v. Lam, ONSC 1086 (CanLII).

How to choose an Estate Trustee


by Elizabeth Bozek, Published: May 27, 2011

Tags:

The Toronto Star posted a helpful article on what should be taken into consideration in choosing an Estate Trustee.

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.
 

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