Estate Litigation Blog

The Courts and COVID-19

by Mitchell Rattner, Published: April 15, 2020

Tags: coronavirus,  court,  covid-19,  estate litigation,  estates,  litigation,  superior court

As individuals and businesses have been required to adapt and adjust as a result of COVID-19, so too has the Court been required to modernize and innovate. Click the title to read more.

We are open during COVID 19 pandemic

by Rob Levesque, Published: April 03, 2020

Tags: courts,  covid,  covid 19,  estate litigation,  estates,  guardianship

Our firm is open and our lawyers and staff are working remotely to address your estate, trust and guardianship litigation issues during the COVID 19 pandemic.

Felice Kirsh, Jordan Oelbaum, and Sender Tator named to Best Lawyers 2020

by Mitchell Rattner, Published: September 09, 2019

Tags: best lawyers,  estates,  felice kirsh,  jordan oelbaum,  sender tator,  trusts

Felice C. Kirsh, Jordan D. Oelbaum, and Sender B. Tator were recently recognized by their peers as three of the Best Lawyers in Canada for the year 2020 in the "Best Lawyers in Canada" survey for the specialty area of Trusts and Estates.

Probate and Privacy

by Rob Levesque, Published: August 25, 2018

Tags: beneficiaries,  estate trustee,  estates,  executor,  privacy,  probate

When you die, the person who you have appointed as your estate trustee will have to file an application for a certificate of appointment  -- commonly called "applying for probate" -- and in that application they will have to divulge the value of your estate, and the individuals whom you have chosen as your beneificiaries.  That application will be filed with the court and as such the information contained in it will be publicly available for anyone to access.  

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. 

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. 

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.

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. 

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.

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.

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.

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.

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.