What if your client is administering an estate and successfully locates an asset which has been seized by the police pursuant to a criminal investigation? The question was recently discussed by the Court of Appeal in Floward Enterprises Ltd. (H. Williams and Co.) v. Winberg Estate, 2017 ONCA 448.

In Winberg Estate, a diamond was seized from a pawnbroker as part of a criminal investigation and held for the purposes of a prosecution. At the conclusion of the criminal proceedings, the pawnbroker applied for its return and was successful. An  Estate Trustee appealed to the Court of Appeal on procedural grounds asserting an ownership interest (the diamond was stolen from the Deceased). The appeal was allowed.

While the point doesn’t often arise, the case is interesting from estates counsel as the judgment is a very helpful review of Section 490 of the Criminal Code dealing with the rights of property owners to obtain return of their property from the police. It also clarifies that those who may have been in lawful possession of property but know of competing claims by third parties must disclose that fact to the Court and put the third party on notice of an application made for the return of the item in question. A very nice review of a complicated process.

Congratulations to the Hon. Mr. Justice Patrick Hurley whose appointment to the Superior Court was announced this past Friday!

Have a nice day everyone,

David