Tag: Estate Litigation
During Hull on Estates Episode #42, Justin and Megan discussed the case of Godwin c. Bolcso  O.P.J. No. 297 and Section 32 of the Family Law Act.
This case concerns the application by a 58-year-old mother for support from four adult children. The issues covered included the definitions of "reasonable care" and "support", and insight into when support will be ordered for parents.
The final blog for this week wraps up our theme by considering an interesting instance of the interaction between power of attorney litigation and estate litigation.
In Wolfson Estate v. Wolfson, a recent reported decision of the Ontario Superior Court of Justice, a brother and sister were engaged in litigation relating to the estate of their late mother. The mother had jointly held her investment portfolio with her daughter. After the mother became increasingly physically and mentally frail after a stroke, the sister and brother had a falling out, the result being that the sister signed off of the joint account in place of her brother.
By will and by agreement, the mother and daughter had agreed that the jointly held portfolio would pass in accordance with the mother’s Will. However, on the mother’s death, the son, as new joint owner of the portfolio, took the position that the asset had passed to him by right of survivorship and, as he was not a party to the agreement, he was not to be bound to treat the jointly held asset as an estate asset. Moreover, he argued that the mother was upset with her daughter and that, rather than change her will, she sought to effect a change in her testamentary disposition by effecting a joint transfer to her son.
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.