Tag: Trust

15 Jan

Karkus v. Cotroneo 2007 – Hull on Estates #93

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Listen to Karkus v. Cotroneo 2007

This week on Hull on Estates, Paul Trudelle and Diane Vieira discuss the case of Karkus v. Cotroneo 2007. The case addresses many of the issues that estate lawyers face on a daily basis, such as: proving or disproving gifts, slander of title and the importance of corroborative evidence.

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18 Dec

The Core Issues Concerning Estate Taxes – Hull on Estates and Succession Planning Podcast # 91

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Listen to The Core Issues Concerning Estate Taxes

This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the core issues surrounding estate taxes.

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04 Dec

Preparing for Trial in a Contested Passing (continued)

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In yesterday’s blog I noted that my blogs this week would, at least in part, address preparation for trial in a contested passing. Today’s blog comments on certain aspects of trial preparation (the parties, setting the matter down for trial and documents/productions).

The issue of whether all of the parties who ought to be involved in the passing are involved, and, if so, whether any of the parties who do not have representation need representation, must be considered. In considering who the appropriate parties are, or should be, the following questions might be asked: Are there self-represented parties? Have they been notified of all matters related to the proceeding? Has any party filed a Notice of No Objection to the accounts? Has anyone filed a Statement of Submission of Rights (if so, have they been served by the plaintiff with written notice of the time and place of the trial)? Is a minor involved (Rule 7.03(2), The Office of the Children’s Lawyer)? Is there an adult party who is disabled (Rule 7, The Office of the Public Guardian and Trustee)? Is a representation Order necessary (Rule 10).

Regarding the scheduling of the trial, an order of the Court for directions, or otherwise, at any pre-trial stage, or at the pre-trial conference might address same. It may be that the date of the trial, fixed in its length, is to be fixed by the Registrar on a date mutually convenient to the parties. If, on the other hand, the proceeding is to be set down for trial, Rule 48.01 of the Rules of Civil Procedure allows for the proceeding to be set down for trial after the close of pleadings and when a party is ready for trial. In any case, inquiries should be made with the Court office where the trial is to take place to determine what, if any, forms need to be filed with the Court to confirm that the trial is to proceed.

Regarding the preparation of documents/productions for trial, it is critical that the documents in respect of the proceeding be organized prior to trial. If the documents necessary for the trial are not in counsel’s possession when preparing for trial, for whatever reason, they should be obtained prior to trial. Such documents include, but are not limited to, all pleadings, the estate accounts, certificate of appointment, prior Judgments for passing of accounts, all Orders regarding the passing of accounts, all Notices of Objections (and withdrawals), Statements of Submission of Rights, Consents/Releases of any party, Affidavits of Service and the documents exchanged between the parties as a result of the Rules of Civil Procedure, any agreement of the parties and/or Court Order. 

Also ensure that all issues of privilege regarding the documents are dealt with prior to trial.

Lastly, ensure that you have the originals of your client’s documents unless they are not available. If originals are not available, know why they are not available.  

Thanks for reading.

Craig

06 Nov

Deferring Tax on Capital Gains – Hull on Estates and Succession Planning Podcast #85

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Listen to Deferring Tax on Capital Gains

This week on Hull on Estates and Succession Planning, Ian and Suzana continue their discussion about rolling assets into Trusts and issues surrounding deferring tax on Capital Gains.

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06 Nov

Trust Claims and Non-Married Spouses – Hull on Estates Episode #84

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Listen to Trust Claims and Non-Married Spouses

This week on Hull on Estates, David Smith and Megan Connolly reference the case Belvedere v. Brittain Estate to discuss constructive trust claims made against an estate by a non-married spouse.

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30 Oct

More on Recovering “Gifts”

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Yesterday, I blogged on the case of Gubo Estate v. Cotroneo. There, the estate was granted judgment against the Defendant for the recovery of an alleged “gift” that the court determined was unsubstantiated, and therefore repayable.

Interestingly, the judgment was not for the full amount of the gift. The Defendant alleged that he had paid out approximately $22,500 on behalf of the deceased, and that this amounted to a debt in his favour. The Court accepted this, without much discussion, and reduced the amount repayable to the Estate by $22,500.

The Court heard from the Defendant that the deceased had made a gift of the funds to him, and that the Defendant had made various expenditures on behalf of the deceased. The Court did not accept that the transfer from the deceased to the Defendant was a gift. However, the flip side of this was that the expenditures by the Defendant for the deceased were not gifts, either: hence, the reduction of the judgment in favour of the Estate.

In dealing with the case of an alleged gift, counsel should always consider the bigger picture: if the gift fails, is there a basis for a counterclaim by the defendant for advances from the defendant to the deceased, or on the basis of quantum meruit?

Thank you for reading,

Paul Trudelle

30 Oct

Appointing, Changing or Removing Trustees – Hull on Estates #83

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Listen to Appointing, Changing or Removing Trustees.

This week on Hull on Estates, Craig Vander Zee and Paul Trudelle discuss the issues surrounding trustee appointments and changes.

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30 Oct

Rolling Assets Into Trust – Hull on Estate and Sucession Planning Podcast #84

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Listen to Episode 84 – Rolling Assets Into Trust
This week on Hull on Estate and Succession Planning, Ian and Suzana further last week’s discussion on trusts and tax planning wills by illustrating the benefits of rolling over assets and being conscious of tainted trusts.

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29 Oct

Recovering “Gifts”

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In the recent case of Gubo Estate v. Cotroneo, the Court considered a claim on behalf of an estate for the recovery of funds advanced by the deceased to her boyfriend.

The deceased had sold her home and had given the proceeds of sale, being $65,000, to her boyfriend, and then moved into his home.

The Court found that there was insufficient evidence to establish that the advance was a gift. 

As to a remedy, the Court heard evidence that the advance was likely for the purpose of defeating creditors of the deceased. As such, the Court declined to apply the doctrine of resulting trusts, applying a Court of Appeal statement to the effect that "evidence of an illegal scheme will not be received to support a resulting trust."

However, the Court found that it was not necessary to rely on the doctrine of resulting trusts. The Court found that it was able to make a monetary award, and granted judgment in favour of the deceased’s estate.

In advancing a claim on behalf of an estate, the imposition of a trust is not always necessary, and a monetary award will often be the most appropriate remedy.

Have a great day,

Paul Trudelle

11 Sep

Pet Trust Funds – Hull on Estates Podcast #76

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Listen to "Pet Trust Funds"
Read the transcribed version of "Pet Trust Funds"

In this episode of Hull on Estates, Ian and Suzana talk about a few case studies, the topic of substantial gifts to animals, and the community of podcasting.

Click "Continue Reading" for the transcribed version of the podcast.

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