Tag: Will Challenge

15 Jul

Probate and Proving a Will

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The term "probate"  recurs throughout estates practice as a noun, verb and adjective.  The most common context refers to the process of getting a court to provide some sort of official certification or recognition that a testatmentary instrument is the Last Will of a deceased.  In Ontario, the probate process results in the issuance of a Certificate of Appointment of Estate Trustee With a Will (or Without a Will).

Under the modern Rules of Civil Procedure, the procedure resulting in the issuance of a Certificate of Appointment rarely requires that a judge review the application, or even the alleged Will.  By Rule 74.14, an application need be referred to a Judge only where, in the opinion of the Registrar, the application and the accompanying materials are not complete or contain information on which the Registrar has a doubt.  This results in an efficient administrative process, but any interested party can challenge the validity of a such a probated Will, and the fact that a Will has been "probated" has no probative value when it comes to proving the Will in solemn form, as it is called.  

A judgment upholding the validity of a Will does not necessarily "probate" that Will.  Parties to the proceeding may not want a Certificate of Appointment to be issued, and so they will not request that a Certificate of Appointment be issued as part of the Judgment.  This might be the case where the Will is a "corporate" or "secondary" will, and is restricted to assets that can pass outside of probate (often to avoid estates administration tax).

Have a great weekend,

Christopher M.B. Graham – Click here for more information on Chris Graham.

 

09 Oct

Verdict in Astor Estate Criminal Case

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The 85 year old son of New York socialite, Brooke Astor was convicted yesterday of grand larceny and scheming to fraud. For a background to the proceedings, click here and here.

After a 5 month trial and 12 days of jury deliberations, Anthony D. Marshall was found guilty of 14 charges, including giving himself a pay-rise of $1 million for managing his mother’s finances. He faces a mandatory sentence from 1 to 25 years behind bars. His sentencing is set for December 8, 2009.

The attorney who did the estate planning for Mrs. Astor was also convicted of forgery charges. Click here to read David Smith’s blog on the attorney’s actions.

The prosecution argued that Mrs. Astor’s Alzheimer’s was advanced so far that she could not understand the complex changes to her 2004 Will or other financial decisions that benefitted her son, such as the $1 million salary.

The defence has argued that Mrs. Astor had lucid moments despite her Alzheimer’s and that she gave her only son control of her estate out of love.

The story does not end there. Mr. Marshall may appeal and the question of what will happen to Mrs. Astor’s $180 million estate has not been resolved. A civil case was postponed pending the resolution of the criminal charges against Mr. Marshall. Some of the charitable beneficiaries of the estate sent observers to the criminal trial and it are not clear how evidence it the criminal  trial will impact the civil case.

Whichever Will is eventually probated, Mr. Marshall will receive a large portion of his late mother’s estate.

Happy Thanksgiving,

Diane Vieira

Diane  A. Vieira – Click here for more information on Diane Vieira.

10 Feb

Tucker and Tucker Estate Will Challenge – Episode #149

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Listen to Tucker and Tucker Estate Will Challenge

This week on Hull on Estates Megan Connolly and Paul Trudelle discuss a decision that was released on January 21, 2009 on the Tucker and Tucker estate, involving a will challenge.
The sole issue was whether or not this particular will was valid.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

 

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20 Jan

Short-circuiting the frivolous will challenge – Episode #146

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Listen to Short-circuiting the frivolous will challenge

This week on Hull on Estates Natalia Angelini and Craig Vander Zee discuss the frivoulous will challenge from the perspective of how you might short-circuit it.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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30 Dec

Offers to Settle in a Will Challenge

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Offers to settle and more specifically, Rule 49.10 of the Rules of Civil Procedure, are intended to force the parties in a legal proceeding to consider the settlement of a matter prior to trial failing which, costs consequences will result if an offer is more favourable than the result obtained at the trial.

In the general litigation context, the Ontario Court of Appeal has held that the Court should depart from the prima facie costs consequences in Rule 49.10 only where, after giving proper weight to the policy of the rule and the importance of a reasonable predictability and the even applicability of the rule, the interests of justice require departure.  

The applicability of offers to settle and Rule 49 in a Will challenge context has been considered by Judges with different results. In the often quoted case of Olenchuk Estate, Re.  the Court found, amongst other things, that it would seem somewhat incompatible with the nature of these proceedings to apply rules designed to encourage settlement of adversarial, contentious, proceedings and when there appears to be a reasonable question whether the deceased was mentally capable of making the Will that is propounded; it imposes an obligation on the Court to be satisfied that the Will was the product of a capable testator before putting on it the imprimatur of the Court. In Olenchuk, the Court further held that Rules designed to encourage settlement of contentious litigation can be applied in estate matters, but the difference between certain kinds of estate litigation and other forms of litigation can make it difficult to apply Rules of Civil Procedure to estate proceedings.

The Ontario Court of Appeal discussed the traditional approach and modern approach to awards of costs in estate litigation in its 2005 decision of McDougald Estate v. Gooderham. The Court found that the modern approach to fixing costs in estate litigation is to carefully scrutinize the litigation and, unless the Court finds that one or more of the public policy considerations, set out in its decision applies, to follow the costs rules that apply in civil litigation.

The Court of Appeal noted that “Gone are the days when the costs of all parties are so routinely ordered payable out of the estate that people perceive there is nothing to be lost in pursuing estate litigation.”

In a Will challenge, offers to settle, whether informal or formal can be an important tool in regard to the disposition of costs; perhaps more so in light of the approach for costs set out in McDougald v. Gooderham.

Enjoy the Holidays! Craig

 

29 Dec

Short Circuiting the Frivolous Will Challenge

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Facing a frivolous Will challenge can be very frustrating, time consuming and costly.

In a typical Will challenge proceeding, the process can involve an application/motion for directions, documentary discovery from the parties and non parties, examination of the parties and non parties, interlocutory motions, mediation (informal or formal), expert reports, a pre-trial conference and a trial.

In the typical Will challenge, an order for directions can be the best tool a party has, at first instance, to manage a Will challenge. An order for directions allows a party to craft the manner in which a Will challenge may proceed and to seek the assistance of the court with obtaining interim and/or ancillary procedural relief to the Will challenge. The provisions included in an order for directions, may depend on, among other things, the issues and parties involved, the evidence to be marshalled, whether mediation is a requirement and, if not, how the evidence known, and/or to be obtained, might be utilized in the pursuit of settlement and the claim, and other relief in respect of the estate that may be necessary.

In the case, however, where the Will challenge is frivolous and the propounder of the Will wishes to short circuit the typical Will challenge process, consideration can be given to, among other things, a motion for summary judgment and/or security for costs. Such a motion can be a powerful tool in litigation in the appropriate circumstances.

An offer to settle can also be used to try and force an opposing party to resolve a frivolous Will challenge or face potentially substantial costs consequences if the proceeding is continued.

Enjoy the Holidays! Craig

18 Nov

Offers to Settle in the Context of a Will Challenge – Hull on Estates #137

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Listen to Offers to Settle in the Context of a Will Challenge

This week on Hull on Estates, Craig Vander Zee and Bianca La Neve talk about offers to settle in the context of a will challenge. They explain the difference between a will challenge and civil litigation and discuss several examples of will challenge cases.

Feel free to send us an email at hull.lawyers@gmail.com or leave us a comment on the Hull on Estates blog.

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28 Oct

Will Challenge Litigation – Part 11 – Hull on Estate and Succession Planning #136

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Listen to Will Challenge Litigation – Part 11

This week on Hull on Estate and Succession Planning, Ian and Suzana talk about the differences between quantum meruit and propriety estoppel. As with any add-on claims, the courts require solid corroboration. They also discuss claims of resulting trust and claims of constructive trust.

If you have any comments, send us an email at hullandhull@gmail.com or leave a comment on our blog.

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21 Oct

Will Challenge Litigation – Part 10 – Hull on Estate and Succession Planning #135

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Listen to Will Challenge Litigation – Part 10

This week on Hull on Estates, Ian and Suzana discuss extraneous claims that can arise during a will challenge. In particular, they talk about propriety estoppel and other situations where someone worked to their detriment in the context of an estate dispute. For these kinds of claims, you require solid corroboration. Next week, Ian and Suzana will address the differences between quantum meruit and proprietary estoppel.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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14 Oct

Will Challenge Litigation – Part 9 – Hull on Estate and Succession Planning

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Listen to Will Challenge Litigation – Part 9

This week on Hull on Estates, Ian and Suzana discuss other claims that can be made concurrent to a classic will challenge. In particular, they talk about quantum meruit claims and how these can be interpreted differently depending on the situation.

If you have any comments, send us an email at hullandhull@gmail.com or call us on the comment line at 206-457-1985 or leave a comment on our blog.

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