Tag: Estate Litigation
Spousal relationships (and their breakdown) and their interaction with estate litigation are the focus of this week’s blogs. In the practice of estate litigation, there is an immense body of applicable case law and statutory authority.
For the purpose of these blogs, the term "married spouse" is used to consider those entitlements which are only granted to those spouses who fall within the definition of marriage in Ontario. The term "unmarried spouse" is used to consider the entitlements of spouses who are not married but who are conferred benefits under the provisions of certain statutes.
(i) Rights of a married spouse on an intestacy
The entitlement of a married spouse on an intestacy is statutory: Succession Law Reform Act, Part II. A surviving husband or wife, on an intestacy, receives the entire estate of his spouse if there are no children. If there are children, the surviving husband or wife still receives the first $200,000.00 of the estate and either 1/2 of the remainder if there is one child or 1/3 of the remainder if there are two of more children of the marriage.
(ii) Rights of an unmarried spouse on an intestacy A surviving unmarried spouse, on an intestacy, receives no entitlement. A spouse is defined for the purposes of Part II of the Succession Law Reform Act as either a man or a woman who is married.
Although there are some cases in other provinces which suggest that this statutory provision offends the equality provisions of the Charter, the only available statutory remedy for an unmarried spouse on an intestacy in Ontario is to bring an application for support under the provisions of Part V of the Succession Law Reform Act.
Tomorrow, we will consider the entitlements of married and unmarried spouses under a Will and their entitlements when the benefit under the Will is less than adequate.
Have a great day, David. ——–
READ THE TRANSCRIBED PODCAST HERE
During Hull on Estates Episode 20, we discussed costs awards and estate litigation. We also analyzed:
- the case of Ali v. Fruci,  O.J. No. 1093 (S.C.J.);  O.J. No. 1425 (S.C.J.); and
- the case of Andersen v. St. Jude Medical, Inc.  O.J. No. 508 (Div. Ct.).
READ THE TRANSCRIBED PODCAST HERE
In Hull on Estates Episode #18, we discussed security for costs in the area of estate litigation, focusing on the role of contingency fees.
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – CONCLUDING THOUGHTS – WHAT TO DO ABOUT ABUSE CLAIMS? – PART VI
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?" , 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. ——–
READ THE TRANSCRIBED PODCAST HERE
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.
READ OUR TRANSCRIBED PODCAST HERE
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,  WTLR 1305,  EWHC 640 (Ch.)
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – EVIDENTARY ISSUES – WHAT TO DO ABOUT ABUSE CLAIMS? – PART V
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.
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.
BREACH OF FIDUCIARY DUTY BY THE WILL MAKER – EXECUTOR AND TRUSTEE’S ROLE – WHAT TO DO ABOUT ABUSE CLAIMS? – PART I
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.