Tag: CLE

29 Oct

Costs Arising from Litigation in respect of a Trust – Nolan v. Kerry

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

In the last of my series this week on recent trust cases of interest, today’s blog looks at the case of Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678. This case provides guidance as to when costs, arising from litigation regarding a pension trust fund, are payable out of the pension trust fund. Though Nolan v. Kerry (Canada) Inc. is a pension case, the analysis might apply to a context where there is a proceeding involving a legitimate uncertainty as to how to properly administer a trust, and/or where there is a trust dispute (whether or not the proceeding is brought by trustees or by beneficiaries).

The issues in Nolan v. Kerry were related to the obligations of an employer under a pension plan for its employees.   


The Supreme Court of Canada dismissed the appeal and affirmed the decision of the Ontario Court of Appeal in favour of the respondents, the employer and the Superintendent of Financial Services. The Court of Appeal had declined to award costs to the Employees Pension Committee (the “Committee”) from the trust fund as the unsuccessful party in the litigation. 


28 Oct

Removal of an Estate Trustee – Gonder v. Gonder Estate

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As part of my continuing series of blogs this week regarding recent trust law cases, today’s blog looks at the case of Gonder v. Gonder Estate, 2010 ONCA 172 (CanLII). The issue is this case dealt with whether an estate trustee of an estate could be removed without providing for the appointment of an alternate estate trustee or otherwise providing for the orderly administration of the estate. 

In this case the estate trustees brought a motion under section 37 of the Trustee Act (Act) for an order removing them as estate trustees of the Deceased’s estate on the basis of their personal circumstances, their location and other responsibilities and financial stress. They had also become creditors of the estate and were in a conflict of interest situation.

The deceased died in January 2008, leaving an estate consisting of some cash or a cash equivalent, and a modest home in Ontario.

Under the Deceased’s Will, the named beneficiaries were the testatrix’s sister, her mother, and her brother. More specifically, the testatrix left a life estate in the Ontario property to her mother, who was still living but was no longer able to stay in the house. The will further directed that the residue of the estate was to be divided equally among the testatrix’s mother, sister and brother.

In February 2008, the Deceased’s brother commenced an action against the estate, claiming that he was the beneficial owner of the property.   

The Estate Trustees, who lived in British Columbia, agreed to undertake the role of estate trustees and a Certificate of Appointment of Estate Trustee with a Will was issued to them.

The Estate Trustees had been unable to sell the property or to distribute the residue of the estate because of the deceased’s brother’s certificate of pending litigation registered on title to the property. The Estate Trustees alleged that, as a result, they had been required to spend their own money to defend the brother’s lawsuit against the estate.

At the time of the removal motion, the Estate Trustees moved for directions seeking, among other forms of relief, an order that the property be sold and the proceedings of the sale be paid into court pending the resolution of the competing interests. The Public Guardian and Trustee indicated that it did not intend to become involved in the estate.

The motions judge found that the continued service as Estate Trustees would cause substantial physical and financial hardship on the Estate Trustees and they had become creditors through no fault of their own. Furthermore, the motions judge found that section 37 of the Act did not require a trustee to provide a replacement before applying to be removed and allowed the motion.

Interestingly, the Ontario Court of Appeal found that the motion judge erred not in removing the trustees without appointing a replacement, but rather in removing them without making alternate provisions for the proper administration of the estate.

The Court of Appeal found in the specific circumstances of this case there were three objectives that ought to have been considered and addressed by the motion judge: (1) ensuring the orderly administration of the estate in the interests of the beneficiaries; (2) recognizing the plight of the respondents; and (3) providing for the timely resolution of the disputes concerning the estate.  

The Court of Appeal held that section 37(4) of the Act does not constrain the power of the court to remove a sole remaining trustee and provide for an alternative mechanism for administering the trust.

Thanks for reading.

Craig R. Vander Zee – Click here for more information on Craig Vander Zee.

27 Oct

Foreign Trustees – Herring Estate (Re)

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

www.hullandhull.com/Lawyers/Craig-R-Zee.shtmlIn yesterday’s blog, I mentioned that my blogs for the balance of this week would focus on a selection of recent trust law cases. A case that merits mentioning in the category of foreign trustees is Herring Estate (Re), 2009 CanLII 44707 (ON. S.C). This is a decision by the Honourable Justice D.M. Brown that provides clear and helpful guidance as to the circumstances under which a foreign trustee can act as ancillary estate trustee.

In this case, the Deceased was a US resident who created an inter vivos trust in North Carolina naming a licensed trust company (the “trust company”) there as the sole trustee. The trust company was also named executor of his Will. The Deceased’s wife was the sole beneficiary of the trust and the trust was the sole beneficiary of his residuary estate. Probate of the Deceased’s Will was issued in North Carolina for the estate, which was substantial in value.


The Deceased owned a new condo unit in Toronto worth $360,000 but with respect to which the estate would owe $126,831 on occupancy date, which had not yet occurred. There were no debts owing in Ontario at the time of the application.


26 Oct

Trusts, Trustees, Trusteeship 2010 – October 1, 2010 Conference

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On October 1, 2010 the Ontario Bar Association had a Continuing Legal Education Program entitled Trusts, Trustees, Trusteeship 2010. The Chair of the Program was Kimberly Whaley. This was a half day program.

I had the pleasure of presenting on the last topic of the morning being a Review and Analysis of Recent Trust Case Law. 

The program topics and presenters are set out below: 

  • The Drafting of Trusts – paper prepared by Hilary Laidlaw and presented by M. Elena Hoffstein
  • Considerations When Drafting Restricted Charitable Purpose Trusts – presented by Terrance S. Carter
  • Remedies for Breach of Trust – presented by Archie J. Rabinowitz
  • Drafting Trusts in Contemplation and Consideration of New Reproductive Technology – presented by Clare E. Burns
  • Trust and Insolvency – presented by Frank Bennett
  • Review and Analysis of Recent Trust Case Law – presented by Craig Vander Zee



01 Oct

New Mandatory Continuing Professional Development Requirements

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Commencing January 1, 2011, lawyers and paralegals in Ontario must complete at least 12 hours of continuing professional development (“CPD”) in eligible educational activities in each calendar year. At least 3 of the 12 hours must be on topics related to ethics, professionalism and/or practice management.

New members in their first two full years of practising law or providing legal services are required to take 12 hours per year of programming that integrates topics related to ethics, professionalism, and practice management for at least 25% of the program. This component must be reasonably connected to the substantive or procedural law content of the program.

All programming must be accredited by the Law Society. There are a variety of activities that may qualify for credit so you can count preparation for and presentation at CPD programs as well as attendance. Activities other than courses must be accredited in advance by LSUC in order to qualify for professionalism credit. Lawyers and paralegals seeking accreditation of activities such as teaching, writing, study groups, or mentoring must complete an Application for Accreditation of Alternate Eligible Educational Activities a minimum of 30 days in advance of the commencement date of the proposed activity. For more information see the LSUC website.

It will be interesting to see the changes in programming and perhaps even the kinds of organizations that will be providing CPD programs with the new requirements. 

If all this talk about continuing education has you ready to come out to mingle with your colleagues and discuss all things estates, Hull & Hull LLP’s breakfast series continues on October 14, 2010.    

Sharon Davis – Click here for more information on Sharon Davis.

22 Apr

Estates & Trusts Spring Events

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Spring is a time for conferences and events.  Here are a few upcoming Estates and Trusts programs you might be interested in.

The Ontario Bar Association is having its annual Dinner with the Honourable Estates List Judges on Tuesday, April 27th at 6:00 p.m. at the OBA Conference Centre in Toronto. It is a great opportunity for estates practitioners to mingle with their own as well as with the Honourable Justices Brown, Conway and Strathy. It has been over a year since the Toronto Estates List Practice Direction so come on out and give some feedback! Last year’s dinner was fun and informative so I expect more of the same this year.

Click here for details and registration.   
The OBA is also holding an event on Thursday, May 20th from 1:00 to 4:30 p.m. entitled "Solicitors as Attorneys, Trustees and Estate Trustees – What You Need to Know". If you are a lawyer who has taken on any of these roles, or intend to, this program is for you. "Learn how to get paid, how to avoid being sued, and how to manage disputes with family members or co-trustee". That pretty much says it all.

Click here for details and registration.

Osgoode’s 7th Annual Intensive Wills & Estates Workshop, with Hull & Hull LLP’s own Jordan Atin as Workshop Leader, takes place over three Thursday evenings, June 10, 17 & 24, and runs from 6:00 – 9:00 p.m. at the Osgoode Professional Development Centre, Toronto. Jordan has certainly enlightened me on many occasions so I’m sure he can do the same for you.  For a preview, check out this link to see Jordan on Canada AM.

Click here for details and registration.

That should be enough ongoing learning to keep you busy until summer vacation…enjoy!

Sharon Davis – Click here for more information on Sharon Davis.

24 Mar

Upcoming OBA Continuing Legal Education Events

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

There are several interesting OBA continuing legal education (CLE) events in the Trusts & Estates Section in the next two weeks.

One is a luncheon program on March 25, 2008 commencing at noon addressing the topic of Power of Attorney Fraud. This program promises to discuss this escalating problem, some recent developments in criminal fraud proceedings, and how careful and creative planning with respect to Power of Attorney documents can help avoid family conflicts as well as costly and senseless litigation.

The speakers and panel slated include several lawyers, a forensic accountant and a detective from the Hamilton Police Service, Crimes Against Seniors Unit.

The other event is a half day program on April 2, 2008 commencing at 9:00 a.m. This program looks at the latest trends which counsel are seeing in the areas of estate planning, administration, litigation, and passing of accounts as well as trust and charity law.

Topics include: The Future of Mediation: Thinking Outside the Box, The Liability of the Passive Estate Trustee – The Hidden Danger, The Limits and Limitations to a Beneficiary’s Recourse Before and After a Judgment Passing Accounts, Developments in Estate Planning, Guardianships and Settlements of Personal Injury Litigation, View from the Bench and Emerging Trends Outside Toronto.

The Chairs of this program are Justin de Vries and Eric Hoffstein.

Both programs are being held at the OBA Conference Centre, 20 Toronto Street, 2nd Floor, Toronto. Information on each program can be found on the OBA’s website www.oba.org/.

Have a great day.


13 Feb

Estate Administration and Persons Born Outside of Marriage

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

The Globe and Mail recently interviewed a man living in British Columbia who may be the son of John F. Kennedy.

The article made me reflect on the different ways solicitors deal with persons born outside of marriage when drafting a Will. Since March 1978, persons born inside of marriage and outside of marriage are entitled to share equally in an intestacy estate. In a testate administration, unless a contrary intention is included in the Will, any words identifying a class of persons such as “issue” and “children” includes persons born outside of marriage.

However, a testator may want to exclude persons born outside of marriage from being considered as part of a gift class in order to remove the obligation on an executor to search for members of the gift class who were born outside of marriage.

Given the prevalence of common law relationships, to include a boilerplate clause excluding persons born outside of marriage from inclusion in the gift class may result in the unintentional disinheritance of grandchildren or great-grandchildren.  Any exclusion clause has to be considered carefully.

The upcoming LSUC CLE program, The Annotated Will, being held on February 21, 2008, discusses how to deal with difficult drafting issues. The two hour program is being chaired by Laura Kerr, Jennifer A. Pfuetzner, and Corina S. Weigl and promises to offer valuable advice on avoiding common drafting errors.

Have a nice day,

Diane Vieira


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