Tag: applications

11 Oct

The Importance of Filing Comprehensive Management Plans

Nick Esterbauer Guardianship Tags: , , , , , , , 0 Comments

A decision released earlier this week highlights the importance of a complete Management Plan supported by evidence when seeking one’s appointment as guardian of property.

Sometimes, the necessity of filing a Management Plan is viewed as a formality without proper attention to the details of the plan.  However, the failure to file an appropriate Management Plan may prevent the appointment of a guardian of property, putting the administration of the incapable’s property in limbo.

In Connolly v Connolly and PGT, 2018 ONSC 5880 (CanLII), Justice Corthorn declined to approve of a Management Plan filed by the applicant and, accordingly, refused to appoint her as guardian of property.  The Management Plan was rejected for the following reasons (among others):

  • it did not address an anticipated increase in expenses over time (including when the applicant was no longer available to serve as the incapable’s caregiver and he may incur alternate housing costs);
  • there was no first-hand evidence from BMO Nesbitt Burns or Henderson Structured Settlement with respect to the net settlement funds in excess of $1.4M and their payout and investment in a portfolio on the incapable’s behalf;
  • the Court was concerned that stock market volatility could threaten to deplete the invested assets;
  • the Public Guardian and Trustee had strongly recommended that the applicant post security, the expense of which was reflected as a deduction from the incapable’s assets (while not suggested that this was unreasonable, Justice Corthorn took issue with the absence of any case law or statutory provision cited by the applicant in support of the payment of the expense by the incapable rather than the applicant herself); and
  • while the applicant had agreed to act as guardian without compensation, the plan did not contemplate how compensation would be funded if claimed by a potential successor guardian.

Notwithstanding that neither the incapable nor the Public Guardian and Trustee had opposed the Management Plan or the appointment of the applicant as guardian of property, Justice Corthorn found that the appointment of a guardian to manage over one million dollars in settlement funds was “contentious” and, accordingly, under Rule 39.01(5) of the Rules of Civil Procedure, direct evidence from a representative of the financial institution was required.  In short, although the applicant was accepted as being a suitable candidate for appointment as guardian of property (and it was anticipated by the Court that she would ultimately be appointed), the Court was not satisfied on the evidence available that the management of the incapable’s property in accordance with the contents of the Management Plan was consistent with the man’s best interests.

While Justice Corthorn declared the individual respondent incapable and in need of assistance by a guardian of property, Her Honour adjourned the balance of the matter, suggesting that the applicant’s appointment as guardian of property could be revisited once additional evidence was filed in support of the contents of the Management Plan and/or the plan was further revised.

Thank you for reading.

Nick Esterbauer

 

Other blog entries and podcasts that may be of interest:

04 Jun

The Decision of Justice Brown – Hull on Estates #165

Hull & Hull LLP Hull on Estates, Podcasts, Show Notes, Show Notes Tags: , , , , , , , , 0 Comments

Listen to The Decision of Justice Brown

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss the recent decision of Re Pearsall.

In this decision, Justice Brown offers clarification on the issue of where applications involving estates may be commenced.

Paul Trudelle has  previously written a post about the decision.

If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.

 

11 Nov

Multiple Wills Can Mean Multiple Certificates of Appointment

Hull & Hull LLP Estate & Trust, Litigation Tags: , , , , , , , 0 Comments

Primary and secondary wills are common enough situations for estates practitioners: one will for probate and the other for assets that can pass outside probate, to minimize estates administration taxes.  But what about situations with multiple wills requiring probate?

According to the October 8, 2008 endorsement of Mr. Justice Brown (court file no. 01-2725-08, no link available yet), where a testator makes 2 wills, each covering different assets, and each naming different executors, a local estates registrar can issue separate Certificates of Appointment of Estate Trustees to different executors limited to the assets referred to in each Will.

The endorsement closes with 2 "reminders" to applicants in multiple wills situations (I won’t paraphrase):…

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01 Apr

Issues Causing Delay in the Granting of Probate – Hull on Estates #104

Hull & Hull LLP Hull on Estates, Podcasts, Wills Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to Delay in the Granting of Probate.

This week on Hull on Estates, David and Sarah discuss issues that cause delay in the granting of probate.

Comments?

Send us an email at hull.lawyers@gmail.com, call us on the comment line on 206-350-6636, or drop us a line on the Hull on Estates blog.

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03 Apr

Tips for Controlling and Managing Estate Litigation – Hull on Estates Podcast #53

Hull & Hull LLP Hull on Estates, Hull on Estates Tags: , , , , , 0 Comments

Listen to "Tips for Controlling and Managing Estate Litigation"

Read the transcribed version of "Tips for Controlling and Managing Estate Litigation"

During Hull on Estates Episode #53, Craig Vander Zee and Bianca La Neve conclude their discussion on tips for controlling and managing estate litigation. They focus on the hearing of issues, applications vs. actions, oral discovery and mediation. 

Look in the Hull on Estates archives to find more podcasts on managing estate litigation.

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