Tag: Estate Litigation

25 Jul

Hull on Estates Podcast #18 – Contingency Fees and Security for Costs in Estate Litigation

Suzana Popovic-Montag Hull on Estates, Hull on Estates Tags: , , 0 Comments

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In Hull on Estates Episode #18, we discussed security for costs in the area of estate litigation, focusing on the role of contingency fees.

18 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – CONCLUDING THOUGHTS – WHAT TO DO ABOUT ABUSE CLAIMS? – PART VI

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Ethical Issues, Wills Tags: , , , 0 Comments

While a claim for damages against the assets of an estate for breach of parental fiduciary duty may be rare and fraught with evidentiary problems, it is clearly founded on the strong common law principals of fiduciary duty and the overall concept is supported by the Supreme Court of Canada. Given the nature of these claims, a case of this type can be persuasive and can present a compelling problem for any executor of an estate.

The head of damages has been identified by the Supreme Court of Canada and it really is a question of quantum. In the right circumstances, combined with a proper and legitimate will challenge, a claim of this nature can change the overall dynamics of any estate litigation matter. At the very minimum, it may have a salutary effect on the considerations of the executor and beneficiaries.

Nonetheless, given the evidentiary frailties of these types of claims, one must be careful not to embark on such an action without careful consideration of the cost consequences. In this regard, see Fox v. Fox Estate (1994), 5 E.T.R. (2d) 174 (Ont. Gen. Div.), (1996) 10 E.T.R. (2d) 229 (Ont. C.A.), Application for Leave to Appeal to the Supreme Court of Canada submitted September 13, 1996 and refused January, 1997; Schnurr, B.A., "Estate Litigation – Who Pays the Costs?" [1991], 11 E.T.J. 52; and Hull, I.M., "Costs in Estate Litigation", 18 E.T.R. (2d) 218.

We hope this review of this interesting area of fiduciary duties has been helpful.

All the best, Suzana and Ian. ——–

18 Jul

Hull on Estate and Succession Planning Podcast #17 – The Causes of Estate Litigation continued

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During Hull on Estate and Succession Planning Episode 17, we continued our discussion on the causes of Estate Litigation. Four more causes were established as:

1) The reluctance to seek advice;

2) Acrimonious extended family;

3) Frailties and secrets;

4) Intransigent family members.

18 Jul

Hull on Estates Podcast #17 – Costs of Estate Litigation

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During Hull on Estates Podcast #17, we discussed the question of costs in Estate Litigation, the British experience regarding costs and the case of Carapeto v. Good, [2002] WTLR 1305, [2002] EWHC 640 (Ch.)

 

17 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – EVIDENTARY ISSUES – WHAT TO DO ABOUT ABUSE CLAIMS? – PART V

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Ethical Issues, Litigation Tags: , , , , , , , , 0 Comments

In almost every case, the majority of the evidence will come from the allegedly abused child and, as such, the strength of that evidence can be problematic. In these types of situations, one must not forget the requirement of corroborative evidence pursuant to section 13 of the Estates Act R.S.O. 1990, c. E.23, which provides that:

13. In an action by or against the heirs, next-of-kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.

See also Schnurr B.A., "Estate Litigation – Requirement of Corroboration", 5 E.T.Q. 42.

Due to the evidentiary difficulties of these types of claims, one of the first steps that a claimant should consider taking is to obtain an expert’s opinion.

The expert’s opinion should contain evidence for the Court to consider with respect to such things as the recollections of the claimant, the details of abuse over the years and the results of both the mental and physical ramifications of that abuse.

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14 Jul

ACCOUNTING DUTIES OF THE EXECUTOR AND TRUSTEE – COMPLAINTS AND OBJECTIONS – PART VI

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Executors and Trustees Tags: , , 0 Comments

Much like with the form of accounts, the Ontario Rules of Civil Procedure set out a comprehensive listing of what is required to proceed with complaints against an executor or trustee. In Ontario, Rules 74.18(7) and (12) provide as follows:

Notice of Objection to Accounts – 74.18(7)

Subject to subrule (8), which applies only to The Children’s Lawyer and The Public Guardian and Trustee, a person who is served with the documents under subrule (4) or (5) and who wishes to object to the accounts shall do so by serving on the estate trustee and filing with proof of service a Notice of Objection to Accounts (Form 74.45), at least 20 days before the hearing date of the application.

Hearing – 74.18(12)

No objection shall be raised at the hearing that was not raised in a Notice of Objection to Accounts, unless the court orders otherwise.

Most claims or objections will arise out of a claim by a beneficiary of alleged negligence by the executor or trustee, by reason of the executor or trustee not exercising the proper standard of care pertinent to his or her office.

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10 Jul

BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART I

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates, Litigation, Wills Tags: , , , , , , 0 Comments
While the law surrounding the breach of fiduciary duty has evolved in many ways over the years, it may be that its current application to estate litigation should be revisited.
The conventional situation where an attorney, a personal representative or a trustee is in a fiduciary position and then uses his or her power in a way that would constitute a breach of that position, has been seen as a fundamental breach of fiduciary duty: see M.(K.) v. M.(H.) (1992), 96 D.L.R. (4th) 289 (S.C.C.).
In M.(K) v. M(H), a unique twist to the conventional "breach of fiduciary duty" was considered by the Supreme Court of Canada in the context of the fiduciary duties of a parent.
It appears that there is now clear authority for the proposition that a parent is in a fiduciary relationship with his or her child. Furthermore, where there are abusive actions on the part of the parent against the child, this conduct may cause the Court to hold that a breach of fiduciary duty has occurred and thereby damages may be awarded against the parent. See also Cullity, M.C. "Personal Liability of Trustees and Right of Indemnification", 16 E.T.J. 115.
Ian has published an article on this topic in the Estates and Trusts Reports entitled, "A New Twist on Breach of Fiduciary Duty in Estate Litigation" (Carswell, 1999). As such, we propose to undertake a careful review of this unique yet important aspect of fiduciary duties.
All the best, Suzana and Ian.

21 Jun

Discussion of U.S. Cases on Undue Influence

Suzana Popovic-Montag Archived BLOG POSTS - Hull on Estates Tags: , 0 Comments

In an effort to come back to some thoughts and discussion on legal issues, we thought we would refer to an interesting series of U.S. decisions on the issue of undue influence.

As a general observation, when a court wants to find against the contestant/objector, the court emphasizes that there is a lack of direct evidence of undue influence, and when a court wants to find in favour of the contestant/objector, the court emphasizes that direct evidence of undue influence is seldom available.

For example, in Lipper v. Weslow, 369 S.W. 2d 698 (Tex. Civ. App. 1963), commenting on the four traditional elements of undue influence (susceptible testator, confidential relationship, participation in the will making process, and benefit), the court seemed to point to the relatively mundane facts that were led to try to make the undue influence case, e.g., the attorney-son (who was the alleged undue influencer) had a key to his mother’s home. Undue influence was not proved.

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27 Mar

An Introduction to Hull on Estate and Succession Planning

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During our podcast, we discussed the following legal issues:

(i) The financial and emotional costs of estate litigation;

(ii) Protecting your estate with advance planning;

a. develop a comprehensive estate plan

b. consulting with beneficiaries in advance ——–

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