Estate Litigation Blog

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.

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.

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.

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

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.

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.   

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. 

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. 

Trust Company Best Practices

by Site Admin, 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. 

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.

"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.