Yesterday, I blogged on the September 14, 2011 LSUC CLE program entitled “Practice Gems: The Administration of Estates 2011: Avoiding the Pitfalls. This excellent program featured a number of great speakers. The program is being repeated on October 31, 2011, and I highly recommend it.
Another speaker was our own Craig Vander Zee. Craig spoke on the topic of administering an estate where there are claims made against the estate, such as claims for equalization under the Family Law Act, dependant support claims under Part V of the Succession Law Reform Act, or trust claims, such as claims involving jointly held assets, or quantum meruit claims.
Such claims necessarily complicate the administration, and give rise to a number of issues and considerations on the part of the Estate Trustee. Craig’s paper addresses a number of these issues, including the nature of the claim, what procedural steps must be taken to defend the claim, representation and notice to all of the interested parties, limitation periods, and the thorny issue of costs.
Thank you for reading, and have a great weekend.
Paul E. Trudelle – Click here fore more information on Paul Trudelle.
I hope everyone had a nice Thanksgiving weekend.
In a recent blog of mine (“To vary a Trust or not to vary a Trust: Does a Statute have the Answer?”), I touched upon the Variation of Trusts Act (R.S.O. 1990, c. V.1) as the authority to vary a trust.In today’s blog and several more this week, I will comment on the procedure and documents typically involved with a variation of trust.
Having decided that a variation is necessary, the trust document should be carefully reviewed to ensure that all terms of the trust are properly understood, and to identify all of the persons having an interest or potential interest (actual and potential beneficiaries) in the trust, to consider those that need to sign the proposed arrangement (which sets out the variation proposed), to consider who will require representation before the Court and those that will be affected by the variation.
The procedure for such a variation consists of the preparation of and signature of a Deed of Arrangement (or agreement setting out the variation that the Court is requested to approve), and an Application to the Ontario Superior Court of Justice (to be heard before a single Judge) seeking a Judgment approving the Deed of Arrangement on behalf of the minor, unborn, unascertained, incapable or contingent beneficiary.
The Application materials, in turn, consist of a Notice of Application and affidavit material supporting the variation. A factum will also be required unless leave is sought further to Rule 38.09(4) of the Rules of Civil Procedure dispensing with the necessity of the factum. A draft Judgment should also be submitted when the materials are served and filed.
A Consent to the Application signed by all of the capacitated beneficiaries is best included as part of the Application material. A letter/document from the Children’s Lawyer/Public Guardian and Trustee indicating their position (ie. that they do not object on behalf of their respective interest) is also typically a part of the Application materials, unless the Children’s Lawyer/Public Guardian and Trustee are attending in Court at the Application before the Judge.
In tomorrow’s blog, I will take a look at the appointment of the litigation guardian for the minor, unborn, unascertained or incapable beneficiary of the trust for the purposes of a variation of trust.
Thanks for reading. Craig
Listen to Variation of Trusts
Craig Vander Zee and Bianca La Neve discuss variation of trusts, with an emphasis on the Variation of Trusts Act and approval of variations of trusts on behalf of minor, unascertained, unborn or contingent beneficiaries. The well-known case of R. v. Irving (1975), 11. O.R. (2d) 42 (H.C.) is discussed.
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