Category: Hull on Estates

22 Dec

Hull on Estates #604 – Use of Reproductive Material After Death: Written Consent Required

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This week on Hull on Estates, Jonathon Kappy and Sydney Osmar discuss a recent decision arising out of the British Columbia Court of Appeal which provides a definitive answer on when reproductive material may be used posthumously for the purposes of creating an embryo.

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08 Dec

Hull on Estates #603 – Updates to the Rules of Civil Procedure

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This week on Hull on Estates, Paul Trudelle and Nick Esterbauer review upcoming changes to the Rules of Civil Procedure as set out in O. Reg. 689/20, effective January 1, 2021.

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24 Nov

Hull on Estates #602 – Can You Appoint a Litigation Guardian for Unborn and Unascertained Beneficiaries?

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This week on Hull on Estate, Stuart Clark and Garrett Horrocks discuss the distinction between appointing a “litigation guardian” or seeking a “representation order” when dealing with the interests of unborn and unascertained beneficiaries in estate and trust litigation.

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17 Nov

Unborn and Unascertained Beneficiaries: Approving Settlement on their Behalf

Garrett Horrocks Hull on Estates, Wills Tags: , , , 0 Comments

In yesterday’s blog, I discussed the representation of unborn and unascertained parties in litigation in which their interests are affected.  In such cases, the parties should obtain a representation order authorizing a chosen individual, or perhaps the Children’s Lawyer, to represent the interests of that unborn or unascertained person or class of persons.  Today’s blog considers the opposite end of the litigation spectrum – settlement.

Rule 10 of the Rules of Civil Procedure empowers the court to appoint a representative to act on behalf of unborn and unascertained beneficiaries. Situations may arise in which such an appointment is not necessary at the outset of litigation, for example, where the unborn beneficiaries need not be named as parties, but which may become necessary to conclude a matter.

In particular, where the parties to litigation agree on terms of settlement, that settlement is subject to the approval of the court if it impacts the interests of a party under disability, such as a mi

nor.  Similar principles apply to circumstances in which an unborn or unascertained beneficiary is not a party to a proceeding but is nonetheless “interested in the settlement” in accordance with Rule 10.01(3) of the Rules.

Rule 10.01(3) authorizes a party appointed by representation order to “assent to the settlement” entered into by the parties to the litigation.  If the judge hearing the motion for court approval is satisfied that the settlement is “for the benefit of the interested persons who are not parties”, and the representative does, in fact, assent to that settlement, the court is empowered to approve the settlement on their behalf.

As a point of practice, although motions for court approval on behalf of parties under a disability have strict requirements as to the nature and content of the materials to be filed, there is no such strict requirement for approval motions brought pursuant to Rule 10.  That said, parties bringing such motions would be well advised to comment on the benefits of settlement from the perspective of the unborn and unascertained beneficiaries in order to assist the court.

Thanks for reading.

Garrett Horrocks

10 Nov

Hull on Estates #601 – Proving Secret Trusts

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This week on Hull on Estates, Natalia Angelini and Kira Domratchev discuss secret trusts and the recent decision of the British Columbia Court of Appeal in Bergler v Odenthal, 2020 BCCA 175.

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27 Oct

Hull on Estates #600 – Keeping Your Spouse Informed: Estate Freezes

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This week on Hull on Estates, Doreen So and Noah Weisberg discuss estate freezes and the importance of keeping your spouse and other family members informed in Hamm v. Hamm (Estate of)2014 MBQB 14.

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13 Oct

Hull on Estates #599 – Rectification in the Corporate Context

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This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the recent decision of Robert Mandel et al. v. 1909975 Ontario Inc. et al., 2020 ONSC 5343, and review the issue of rectification in the corporate context.

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29 Sep

Hull on Estates #598 – How has COVID-19 Impacted the Execution of Wills?

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On today’s podcast, Rebecca Rauws and Garrett Horrocks discuss the execution of Wills in the midst of COVID-19, and how the emergency measures introduced this year may impact how Wills are executed in the future. The Globe and Mail article mentioned by Garrett and Rebecca during the podcast can be found here.

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15 Sep

Hull on Estates #597 – Pour Over Clauses

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This week on Hull on Estates, Jonathon Kappy and Stuart Clark discuss Quinn Estate v. Rydland2019 BCCA 91, and the concept of “pour over clauses” more generally and whether you can leave a bequest in a Will to an already existing inter vivos trust.

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04 Aug

Hull on Estates #595 – When to Strike: Rule 25.11 and Notices of Objection

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This week on Hull on Estates, Noah Weisberg and Sydney Osmar discuss Notices of Objection, Rule 25.11, and the court’s decision in Dessisa and Wolde v Demisie.

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