2020….what a year – I’ll say nothing more other than I herewith present the most popular estate and trust cases of 2020 as decided solely and arbitrarily by me:

Calmusky v Calmuskyhere, the Superior Court of Justice ruled that the designated beneficiary was presumed to be holding a RIF in trust for the estate of the deceased and had the onus of rebutting the presumption.  Essentially, the court applied the rule in Pecore to a RIF by stating that “…I see no principled basis for applying the presumption of resulting trust to the gratuitous transfer of bank accounts into joint names but not applying the same presumption to the RIF beneficiary designation”.

Sherman Estate – should probate applications be sealed?  At the Superior Court of Justice, the sealing order over the Sherman probate applications was granted ex parte.  This was based upon the perceived risks to the executors and beneficiaries as well as the need to protect the privacy and dignity of the victims of violent crimes and their loved ones.  The Court of Appeal, however, held that a public interest component must be met and proceeded to set aside the sealing orders.  The matter reached the Supreme Court of Canada on October 6, with a decision yet to be released.

Trezzi v Trezzi – what happens when a will gifts an asset that is actually owned by a corporation?  The Court of Appeal had to determine the potential validity of a bequest of property in a will when the property was not directly owned by a testator, but rather owned by the testator through a wholly owned private corporation.  Although the court upheld the bequest in question, they noted that the language used in the will was potentially problematic and encouraged counsel to be more careful when drafting in similar circumstances.

Lima v Ventura – notwithstanding COVID, procedural timelines set out in court orders must be respected.  Here, a party brought a motion to extend the deadline to exercise an option to purchase a home, citing the circumstances of the COVID-19 pandemic as the basis for the request.  The request for an extension was ultimately denied because the party failed to provide evidence to support the claim that the circumstances caused by COVID frustrated efforts to purchase the house.  The court did set out a number of factors to consider related to delays due to COVID-19 that could justify varying a court-imposed timeline.

Happy New Year!

Noah Weisberg

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