The Advocates’ Society annual “Top Cases in Estates Law” program is a must attend event for estate litigators, gathering eminent lawyers from the practice area to speak to important updates to case law from the past year. This year’s esteemed panel of presenters included Alexandra V. Mayeski, Kristine J. Anderson, Dawn Phillips-Brown, Anne Posno, Lionel J. Tupman, and Hull & Hull’s own, Doreen So.

This year’s program took place virtually on January 21, 2022 and gathered attendees from all over the country. Hull & Hull LLP was a proud sponsor of this year’s event. The presenters spoke to a wide variety of cases and topics, a few of which are discussed in more detail below.

The event kicked off with Alexandra V. Mayeski of Goddard Gamage LLP presenting on Sherman Estate v Donovan, 2021 SCC 25 and Tanti v Tanti, 2021 ONCA 717. Key takeaways from Sherman Estate v Donovan is that the open court principle prevailed in the context of sealing orders of probate applications. Important to note is that probate applications, as Court proceedings, are presumptively open to the public in order to ensure confidence in the administration of justice. Tanti v Tanti is notable as the test for the capacity to marry has shifted from previous decisions of the Court. The current test is that the parties must understand the nature of the marriage contract and the duties that flow from it. The Court clarified that the parties must agree to live together and love one another to the exclusion of all others, with this case marking a departure from previous decisions of the Court that imposed a higher threshold for the capacity to marry.

Dawn Phillips-Brown spoke to the fascinating case of Kucman v Lacroix Estate 2021 ONSC 2919, where a solicitor attempted to navigate Covid-19 restrictions in a hospital by having the dying testator create a holograph Will and incorporate by reference a hard copy of the draft Will that the solicitor prepared. When the Estate Trustee applied to probate the Will, the Court declined to issue the Certificate of Appointment of Estate Trustee with a Will. The Court’s decision provided some important reminders. Notably, a holograph Will must be able to stand alone as a valid testamentary document by making a disposition of property, should be entirely in the testator’s handwriting, and should not incorporate a reference to a typewritten document.

Be sure to make note of this excellent programming ran by the Estates Litigation Practice Group of The Advocates’ Society to attend next time if you missed this year’s event.

Thank you for reading and have a great day,

Endrita Isaj