Estate Litigation Blog

Felice Kirsh discusses the benefits of evaluative mediators

by Mitchell Rattner, Published: July 02, 2019

Tags: beneficiaries,  estate litigation,  estate planning,  heirs,  inheritance,  intestacy,  mediation

Read Felice Kirsh's article in Advocate Daily about the benefits of evaluative versus facilitative mediators. You can find it here.

Felice Kirsh on "Is my estate dispute suited for mediation?"

by Mitchell Rattner, Published: May 16, 2019

Tags: beneficiaries,  estate litigation,  estate planning,  heirs,  inheritance,  intestacy,  mediation

Read Felice Kirsh's article in Advocate Daily about which estate and trust disputes are best-suited for mediation. You can find it here.

Felice Kirsh discusses the benefits of mediating estate disputes

by Mitchell Rattner, Published: April 15, 2019

Tags: beneficiaries,  estate litigation,  estate planning,  heirs,  inheritance,  intestacy,  mediation

Read Felice Kirsh's article in Advocate Daily about how estate mediation can mitigate risk, save time and money. You can find it here.

No Two-Year Limitation Period for Passing of Accounts

by Mitchell Rattner, Published: December 10, 2018

Tags: armitage v. the salvation army,  estate litigation,  fiduciary,  passing of accounts,  power of attorney,  trustee,  wall v. shaw,  wills and estates

The Ontario Court of Appeal has confirmed that there is no two-year limitation period to commence an application to pass accounts or to file a notice of objection to accounts.

Felice Kirsh discusses the perils of finding heirs

by Robin Spurr, Published: October 03, 2018

Tags: beneficiaries,  estate litigation,  estate planning,  heirs,  inheritance,  intestacy

Read Felice Kirsh's article in Advocate Daily about identifying and tracking down beneficiaries.  You can find it here.

The partners at SKOT LLP are Lexpert-ranked

by Robin Spurr, Published: September 25, 2018

Tags: estate litigation,  estate planning,  leading lawyers,  lexpert

The new 2019 Lexpert rankings are out!

Buzz Aldrin Guardianship Dispute & the Importance of Planning for Incapacity

by Mitchell Rattner, Published: June 26, 2018

Tags: estate litigation,  estate planning,  guardianship,  incapable,  incapacity,  power of attorney,  wills and estates

Apollo 11 astronaut Buzz Aldrin is suing his two children for improperly taking control of his finances. His children had previously brought a Court Application to have him declared incapable, and to have them appointed as his guardians for property.

As this litigation is unfolding, it is a good time to consider the importance of planning for future incapacity, and some benefits - and risks - of making Continuing Powers of Attorney for Property.

The expensive consequences of being unreasonable in estate litigation

by Robin Spurr, Published: June 21, 2018

Tags: costs,  estate litigation,  estate trustees,  estates

The recent case of Newlands Estate v. Newlands Estate highlights the need for proportionality in litigation, and the expensive consequences if you are not. 

Powers of Attorney - Common Myths

by Mitchell Rattner, Published: March 16, 2018

Tags: estate litigation,  estate planning,  power of attorney,  wills and estates

Last November was the Ontario Bar Association's "Make a Will Month", and I spoke at Barbara Frum Library about the benefits of having a will. While a will is an important and effective tool for directing how your property is to be distributed following your death, powers of attorney enable you to authorize someone else to act on your behalf with respect to managing your property and/or making decisions concerning your health and personal care.

I recently read an article that contained inaccurate information about powers of attorney, and decided to clarify a few common myths.

Costs in Estate Litigation

by Robin Spurr, Published: February 28, 2018

Tags: costs,  estate litigation,  trial

One of the questions we hear most often as estate litigators is “will I get my legal costs back?”.  It is very common in litigation for one party or both parties to feel that the litigation would have been unnecessary but for the actions of the other party, and at the end of the day, they want the other party to pay the costs incurred in the litigation.

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.  

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.

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.

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.

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. 

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 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.

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.

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.

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.

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