Tag: Estate Litigation
READ THE TRANSCRIBED PODCAST
During Hull on Estates Episode 37 we discussed:
- Limitation periods and equalization payments in the context of estate litigation;
- The case of Webster v. Webster Estate, including:
- the facts of the case;
- the marriage contract;
- the Application to extend the time for the limitation period;
- Section 2(8) of the Family Law Act; and
- the Courts decision in this matter.
The term “Elder Abuse” has become increasingly prevalent in the media over the past few years. The term means different things to different people. Television programs and feature articles in newspapers have occasionally chronicled tragic occurrences of physical mistreatment of residents of long-term care facilities.
Apart from such physical abuse and neglect of the elderly, financial abuse is also increasingly reported in the media. Terms such as “scam artist” and “predator” are commonly invoked to describe those who seek to defraud the elderly. Police forces in urban centres commonly have investigators exclusively assigned to the protection of the elderly (and others) from such threats. The Public Guardian and Trustee has a similar mandate in the civil context. In Toronto, the Advocacy Centre for the Elderly has the protection of the elderly as one of its mandates.
This past weekend, I was in Niagara Falls and decided to cross the border for some shopping therapy at the Buffalo area outlet malls. As I made my way from store to store, and clothing rack to clothing rack, I was struck by how many items, designer or otherwise, are manufactured in far-flung places like China, India, Bangladesh and Indonesia. It reminded me of the prevalence of outsourcing in today’s economy, from clothing to customer-support hotlines.
As I pondered the phenomenon of outsourcing, I thought about its use and effects on the legal profession. Could the world of law be next? Would we soon have “Made in India” legal documents such as contracts and court briefs?
To clarify the terminology, “outsourcing” refers to using any third party to provide services previously provided by full-time employees. “Offshoring” refers to outsourcing to a non-domestic provider.
Many law firms and legal departments in the U.S. are already offshoring legal work. For decades, American businesses have found economic advantage in outsourcing work overseas. Much more recently, outsourcing overseas has begun to command attention in the legal profession, as corporate legal departments and law firms endeavour to reduce costs and manage operations more efficiently. The types of work being outsourced and offshored by U.S. law firms and legal departments are:
- Document drafting by lawyers
- Legal research
- IP legal work, substantive or administrative
- Review of discovery documents
- Paralegal services
- Administrative and secretarial support services, excluding digital dictation
The work is outsourced to either a foreign lawyer not admitted to practice in any U.S. jurisdiction or to a layperson.
More on this topic tomorrow. Have a great day!
Bianca La Neve
For most people, I would imagine that the words “DNA testing” evokes the family law or criminal law contexts. However, a recent decision coming out of Nova Scotia involved DNA testing in an estate litigation dispute.
The case is Miller v. Staples Estate (2006), 25 E.T.R. (3d) 303 and involved a fight between sisters over their deceased father’s estate. Their father had died intestate. The plaintiff daughter commenced an application for a court order requiring her sister to provide a DNA sample to test for paternity. Although the sisters shared the same mother, the plaintiff challenged her sister’s entitlement to a share of the deceased’s estate on the basis that the deceased was not her biological father. The plaintiff argued that Nova Scotia’s Civil Procedure Rules, specifically Rule 22, provided the court with the authority to order DNA testing
Webster v. Webster Estate – Limitation Periods and Equalization Payments: When is it too Late? Part II
In yesterday’s Blog, we learned that Mrs. Webster sought an order extending the six-month time limit within which she could file an election to make an equalization claim from her husband’s Estate. Today, I will consider the law and the court’s decision.
According to the court, while there was evidence to suggest that Mrs. Webster was content with her benefits under the Will during the life of Mr. Webster, the court nevertheless recognized that she was completely free to change her mind and seek an equalization payment within the prescribed time.
Section 2(8) of the Family Law Act provides that the court may, on a motion, extend the prescribed time if it is satisfied that: (1) there are apparent grounds for relief; (2) relief is unavailable because of delay that has been incurred in good faith; and (3) no person will suffer substantial prejudice by reason of the delay.
Limitation provisions generally aim to strike the appropriate balance between an aggrieved party’s right to seek redress and a potential defendant’s right not to remain under the cloud of litigation indefinitely or to answer for a wrong where it has become difficult, if not impossible, to marshal the evidence.
The case of Webster v. Webster Estate , a recent decision of the Ontario Superior Court of Justice, attracted notoriety in the media, as the Webster family is well known in Montreal and the world of philanthropy. The case is interesting to read given the amount of money at stake and the family dynamics. The case also deals with limitation periods in the estate context. Today, I will discuss the facts. Tomorrow, I will discuss the law and the court’s decision.
Title fraud is an issue that has garnered a significant amount of press over the last few months. All of us want to know that the title we hold in our homes is secure and that our homes cannot be sold from under us or otherwise encumbered. This is true whether buying a first home, transferring a home to a joint owner, or selling a home pursuant to the terms of a Will. Forged powers of attorney for property can also be problematic in this regard.
Recently, the Ontario Government introduced legislation to address the issue of title fraud. If passed, the proposed legislation would ensure that ownership of a property could not be lost as a result of the registration of a falsified mortgage, fraudulent sale, or counterfeit power of attorney. Instead, an innocent homeowner’s title would be restored to them and the fraudulent document would be nullified. The proposed legislation will also introduce new safeguards for suspending and revoking the accounts of fraudsters so that they cannot register documents, and raise existing fines for real estate fraud related offences from $1,000 to $50,000.
Yesterday, I reviewed the facts in Godwin v. Bolcso  O.P.J. No. 297. Today, I will review the law and consider the court’s decision.
According to the court, section 32 of the FLA required three questions to be asked: (1) Did Veronica provide support to her children? (2) Did she provide care? (3) Was she in financial need?
The court held that Veronica was, in fact, in financial need. Given her age, Veronica had difficulty securing employment. She owed income tax. Veronica also had health needs and could not afford proper medical care.
In terms of care and support, the question the court posed was what care and support for children would reasonably have been expected from a parent in the circumstances in which the family found itself? Minimum or maximum measurements were to be avoided.
The court defined support as such things as housing, food, clothing, health, recreational activities, vacation, travelling expenses, as well as nursing and medical attention during illness. Reasonable care was defined as such care as an ordinarily prudent person would exercise under the conditions existing at the time he or she was called upon to act.
The Court found that Veronica did provide as much care as reasonably might be expected of her in the circumstances. Moreover, the conditions existing in the 1950s and 1960s were relevant in judging Veronica’s level and skill of parenting.
In the end, the court held that Veronica’s children had a financial obligation to support their mother and so ordered. The court invited the parties to agree on an amount; otherwise the court would fix an amount. The court also declined to impose a termination date and held that support could run for an indefinite period of time.
In conclusion, the Godwin case stands for the clear proposition that a court can order a child to financially support a destitute parent, who had provided the requisite level of care in support.
Have a good day.
Justin de Vries.
READ THE TRANSCRIBED PODCAST
During Hull on Estates Podcast #35, we discussed the following:
- Competing beneficiaries who join forces to challenge a Will when they do not have identical interests;
- People that need to be served in a Will Challenge;
- How to decide if you need your own lawyer or if you should join forces with the same solicitor; and
- How to deal with the costs of the Will Challenge when dealing with several lawyers.
Today’s BLOG will consider the issue of an adult child’s obligation to support a parent(s), who is financially destitute.
Unfortunately, we hear all too often of an elderly person living in poverty. While it is widely recognized and accepted that a parent has an obligation to financially support a minor child, it is less known that the law may impose an obligation on an adult child to financially support a parent.
The Parents’ Maintenance Act was originally enacted in 1921. It was eventually superseded by section 17 of the Family Law Reform Act, which was, in turn, superseded by section 32 of the Family Law Act (the “FLA”). However, applications for support are extremely rare and there is little case law. However, the case of Godwin v. Bolcso  O.P.J. No. 297 provides some insight into when support will be ordered for parents. Today, I will discuss the facts. Tomorrow, I will discuss the law and the court’s decision.