What if your spouse shortchanges you in their will? If you are unhappy with the amount your spouse left you in their will, you may have some legal options, for example: Option 1: Instead of taking under the will consider electing for “Equalization” if you were married. Ontario’s Family Law Act (“FLA”) views marriage as an economic partnership and gives married spouses the option to either accept entitlement under their spouse’s will OR make an election for equalization of “net family property”. Requirements: be married, no enforceable marriage contract etc. Deadline: The surviving spouse of a marriage must file for equalization within six (6) months of the death. Otherwise, they may lose out on the opportunity to make this claim. Option 2: File for a Dependant Support claim If you qualify as a “dependant” spouse, even if unmarried, you can make a Dependant Support claim under the Succession Law Reform Act. A court can compel the deceased’s estate to provide adequate provision of support for you. Adequate provision for of support is determined by considering many factors, including: the surviving spouse’s financial circumstances; the legal obligations of the deceased; the moral obligations of the deceased. When considering moral obligations, the court has often considered society’s expectations of what a judicious person would do in the circumstances (Cummings Cummings); the dependant’s capacity to contribute to their own support; the dependant’s age, physical and mental health; and the length of the relationship contributions to the deceased’s realization of career potential Requirements: The surviving spouse would need to prove that the deceased was actually providing support or was under a legal obligation to provide support immediately before their death. Deadline: It is recommended that the surviving spouse give notice to the estate immediately. The spouse must commence a Court application within six (6) months of the issuance of the Certificate of Appointment of Estate Trustee (the granting of probate). Remember, the rights of a spouse to equalization of net family property and to Dependant Support are not mutually exclusive. After equalization, a married spouse may still be able to bring a claim for dependant support if they are not provided with adequate provision for proper support. For further information or to schedule a consultation please contact Ashley Doidge of Devry Smith Frank LLP at 416-446-3348 or ashley.doidge@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesAugust 29, 2019September 30, 2020
What is a Continuing Power of Attorney for Property? A Continuing Power of Attorney for Property is a legal document in which you can appoint a person or persons to act on your behalf (called an “Attorney”) with respect to your property and financial affairs. The document will allow them to make decisions for you if you become incapable of managing your financial affairs. *The term “Attorney” refers to the person or persons you have chosen to act on your behalf. He or she does not have to be a lawyer. WHO YOU CAN APPOINT AS YOUR ATTORNEY FOR PROPERTY You can choose anyone you want as your Attorney as long as he or she is eighteen (18) years of age or older. You can also choose multiple people to act. If you appoint more than one person, you can state that the Attorneys are to act “jointly” or “jointly and severally”. If the Attorneys are appointed “jointly”, this means that they will be required to act together at all times. If the Attorneys are appointed “jointly and severally”, this means that either of the Attorneys named can act independently. If you name the Attorneys “jointly”, the advantage is that there is always a second person “double checking”. A disadvantage of naming the Attorneys “jointly” is the lack of flexibility – say, for example, if one Attorney is temporarily unavailable because of vacation, the available Attorney will not be able to make any decisions without the second person. APPOINTING A TRUST COMPANY AS YOUR ATTORNEY FOR PROPERTY Some people prefer to appoint trust companies (many of the big banks offer trust services) because they are professional and impartial. WHAT HAPPENS IF THE PERSON YOU CHOSE IS DECEASED, IS INCAPABLE, OR DOES NOT WANT TO ACT AS YOUR ATTORNEY FOR PROPERTY? If two or more Attorneys act jointly under the Continuing Power of Attorney and one of them dies, becomes incapable of managing property, or resigns, the remaining Attorney or Attorneys are authorized to act, unless the power of Attorney provides otherwise. If only one primary Attorney was named, you can name a substitute Attorney, and the substitute can act. DATE OF EFFECTIVENESS OF THE POWER OF ATTORNEY FOR PROPERTY We generally recommend that the Power of Attorney give your Attorney legal authority as soon as the document is signed. However, you can specify otherwise in the document. For example, some people only want the document to be effective upon a specific date or specific event (such as the Attorney obtaining a letter from your family physician which states that you are mentally incapable and cannot manage your property). An advantage of giving your Attorney legal authority as soon as the document is signed is that your Attorney will not need to go through formal processes to prove to third parties, such as banks, that the Power of Attorney has come into effect. IS MY ATTORNEY ENTITLED TO COMPENSATION? Your Attorney is entitled to take payment at a rate set out by the law, unless you say otherwise in the Power of Attorney for Property. If you want to prohibit your Attorney from taking any payment or you want to set a specific amount yourself, you can do this by including specific instructions in the Power of Attorney for Property. FIVE FACTORS TO CONSIDER WHEN CHOOSING WHO YOU SHOULD APPOINT AS YOUR ATTORNEY FOR PROPERTY Choosing an Attorney for Property is an important decision as that person will have full access to your money and other property. Trustworthiness Is the person honest? Do you know the person well enough or long enough to trust them? Will this person act in your best interest? Does the person have personal issues such as financial or health concerns that may interfere with the management of your property? Reliability Can you rely on this person? Experience Does the person understand financial matters? Availability Does the person have the time to handle your financial matters? Is the person readily available and easy to contact? Does the person live nearby? Willingness Is the person willing to take on the responsibility? Does the person understand the duties and responsibilities involved in being your Attorney? For further information or to schedule a consultation please contact Ashley Doidge of Devry Smith Frank LLP at 416-446-3348. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By G63tEGnX1EBlog, Wills and EstatesAugust 22, 2019September 30, 2020
Thinking of Getting Married? Maybe You Should Consider A Marriage Contract There is more to marriage than just a party with a DJ and catered food. Getting married is a serious legal undertaking which involves significant financial consequences. I realize that discussing a marriage contract with your spouse can be extremely difficult and may spoil the mood. Marriage contracts are not for everyone – but they may be helpful for some (if they can muster up the courage to discuss the contract with their spouse). What happens to your property when you do not have a marriage contract? The Family Law Act (the “FLA”) is the legislation that applies to property upon marriage breakdown – it provides default regime for those of us who do not have contracts. The philosophy of the FLA, is that subject to certain exceptions*, any financial growth during the marriage is to be shared equally by both spouses. Accordingly upon marriage breakdown caused by separation or death, a calculation is done for each spouse to determine the growth in the value of that spouse’s assets during the marriage. The FLA then prescribes that a payment is to be made by one party to the other to provide for equal financial growth during the marriage. Please note a common misconception is that parties will end up with the same net worth on marriage breakdown – this is not necessarily true, especially if one spouse came into the marriage with significant assets! The exceptions mentioned above relate primarily to the matrimonial home, inheritances and gifts. Note that if you are living in the same home at the date of marriage as at the date of separation or death, the entire net value of the home is shared equally between the spouses, but if you move homes the entire net value of the home is NOT necessarily shared equally between the parties. The court may award a spouse an amount that is more or less than half the difference between net family properties if the court is of the opinion that equalizing net family properties would be unconscionable. Marriage Contract Parties wishing to opt out of the property provisions of the FLA can enter into a marriage contract to provide for different provisions than contemplated in the FLA. Among other things, a marriage contract may deal with: – property; – support obligations; and – directing the education and moral training of children. Note that if you decide to enter into a marriage contract the court may set aside a contract for various reasons including if: – If a party failed to disclose to the other significant assets or significant debts or other liabilities existing when the domestic contract was made; – If a party did not understand the nature and consequences of the domestic contract; and – Otherwise in accordance with the law of contract. Further the court may disregard any provision of a contract respecting provision for support if: – the provision results in unconscionable circumstances; – the provision relates to a dependent who qualifies for social assistance; or – there is a default in paying support under the contract. If you are interested in drafting a marriage contract please contact Ashley Doidge of Devry Smith Frank LLP at 416-224-1996 or Ashley.doidge@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesAugust 13, 2019September 30, 2020
Avoiding Guardianship Litigation with Carefully Considered Powers of Attorney With Canada’s ageing population, there has been an increase in disputes within families about who should be making personal and financial decisions on behalf of incapable members of the family. Many of these disputes could be avoided with properly drafted Powers of Attorney. In Ontario, there are two common Powers of Attorney: 1) a Continuing Power of Attorney for Property, and 2) a Power of Attorney for Personal Care. While a Will directs what will happen to your assets after you pass away, Powers of Attorney stipulate who will make decisions about your assets while you are alive, and who will make decisions about your personal care when you are alive but unable to make the decision for yourself. The person(s) who is named is referred to in the documents as the “attorney”. Note, the attorney does not need to be a lawyer and often is a family member or friend. Without a Power of Attorney for Property, when you become incapable of managing your property, nobody except the Office of the Public Guardian and Trustee will be able to manage your finances unless a court application is commenced. Such court applications can be inconvenient and expensive. Needless to say, the person you would have chosen to do this job for you may not be the person the court appoints. Without a Power of Attorney for Personal Care, when you become incapable of making personal care decisions, the legislation takes effect which provides a list of potential substitute decision-makers in a hierarchy. Note that the list includes the incapable person’s “spouse” or “partner” before the incapable person’s child. Hypothetically, a situation could occur where an incapable person’s boyfriend or girlfriend could have the legal authority to make important personal care decisions instead of the incapable person’s adult children. Alternatively, another hypothetical situation that could occur if there is no Power of Attorney for Personal Care is that an estranged relative might have the right to make personal care decisions for the incapable person. Who and How Many Attorneys Should You Name? While it may seem like a straightforward decision to name one child over the others for simplicity, it may be viewed by your other children as a symbol of favouritism. For this reason, many people decide to name all their children. If you name more than one attorney, you can designate whether you want them to act “jointly” or “jointly and severally.” The main advantage of naming attorneys jointly (which requires unanimity) is that there are checks and balances, whereas if the attorneys are named jointly and severally, each of them can technically make decisions on your behalf without consulting the other. The main hurdles with jointly- appointed attorneys will be the unavailability of one attorney, the inconvenience of requiring all attorneys to make each decision together (which means all the attorneys may need to go to the bank to withdraw funds, for example), and the possibility of having a disagreement among an even number of attorneys, leaving them deadlocked. To proactively deal with these potential issues, we recommend that each client consider providing a “majority rules clause” in their Powers of Attorney, which outlines that a majority of attorneys can act. Alternatively, a client may want to name an additional attorney to act as a tie-breaker when there are disputes about managing the property. Note that if your attorney is a US resident, you may want to get legal advice about the following potential complications: Affected status of a Canadian Controlled Private Corporation (CCPC); Canadian brokerage institution insisting that the attorney liquidate the investment portfolio which may give rise to potentially accelerated capital gains; If your attorney has signing authority over a Canadian account, they may be required to report annually to the Department of the Treasury by electronically filing a Financial Crimes Enforcement Network (FinCEN) 114 and a Report of Foreign Bank and Financial Accounts (FBAR). What to do if you have been named as an Attorney for Property? 1) Determine if you want to act as the attorney or if you want to renounce; 2) Meet with a lawyer to obtain advice as to whether your authority is triggered or whether you need to obtain medical evidence to support your authority to act; If you decide that you want to act: 1) Collect a full list of assets and liabilities of the incapable person; 2) Obtain legal advice about the duties of attorneys for the property; 3) Obtain a copy of the last Will and Testament and do not dispose of property that is subject to a specific testamentary gift unless it is necessary to comply with your duties; and 4) Keep detailed accurate records of your activity and be sure to keep all receipts for expenses. Note to Professionals: Use Caution When Presented with a Power of Attorney for Property If you are presented with a Power of Attorney for Property, be sure to: obtain an original or notarized copy; ascertain whether the attorneys are named jointly or jointly and severally; determine whether the Power of Attorney is effective in Ontario; be sure to read the document to see if the grantor provided specific restrictions on the authority of the named attorney; identify the attorney named by taking photo ID for your file; take reasonable precautions to discover and avoid fraud and determine the authenticity of the document (some case law suggest making inquiries as to whether the grantor is alive, if they had ever revoked the power of attorney, or if they were mentally competent when the power of at attorney was signed); And consider obtaining legal advice. If the grantor is deceased, the Power of Attorney document is no longer valid and the attorney loses their ability to manage the assets of the grantor and to give instructions to third parties using the document. SUMMARY OF TYPES OF POWERS OF ATTORNEY A Continuing Power of Attorney for Property is a legal document that gives someone else the legal authority to make decisions about your finances. Using the document, the attorney may be able to manage your property and make decisions including: Selling your home; Obtaining a mortgage; Withdrawing funds from your bank account; Instructing your investment advisor; Filing tax returns; Instructing counsel on your behalf if you become involved in litigation; Gifting your grandchildren wedding and birthday gifts; and Making donations to charity Power of Attorney for Personal Care is a legal document in which one person gives another person the authority to make personal care decisions on their behalf if they become mentally incapable. Using the document, the attorney may be able to make the following decisions: Whether you live in a Jewish nursing home such as Baycrest or a secular nursing home or at home with live-in support; What kind of medical treatment you receive; and What you eat. Many clients include boilerplate instructions about their wishes with respect to the end of life treatment. Some clients may wish to consult with their Spiritual Advisor to discuss drafting a religiously-oriented Power of Attorney. The Power of Attorney is called “continuing” because it can be used after the person who gave it is no longer mentally capable to make the financial decisions themselves. Note that this document can also be used by the attorney when you are capable, but unable to act–for example, if you are away in Florida for the winter and you need something to be signed at home in Toronto. You can also create a Non-Continuing Power of Attorney for Property which is a legal document that gives someone else the legal authority to make decisions about your finances, but, in this case, the document cannot be used if you become mentally incapable. If you would like more information on the powers of attorney, please contact Ashley Doidge at 416.446.3348 or ashley.doidge@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesAugust 6, 2019September 30, 2020
7 Estate Planning Tips For Spouses Estate planning is inarguably one of the most important things you can do for yourself and your family. Not only can estate planning legally protect your spouse and assets, it can also instruct others on exactly how you would like things handled after your death. MAKE A WILL If you die without a will, the provincial government decides how your assets will be distributed under intestacy rules. Many people incorrectly assume that if they die without a will their estate would pass to their spouse. This is not necessarily the case. In Ontario, for a spouse to inherit from your estate they must be married to you [common law spouses do not automatically inherit under intestacy rules!]. If you have children, your spouse will receive a “preferential share” up to $200,000 worth of your assets. The remainder of your estate will be divided as follows: If you have one child, your child and spouse will split the remainder. If you have more than one child, your spouse receives one third, and your children will split two thirds equally. Making a valid will prevent the intestacy laws above from taking effect as well as providing additional benefits. UPDATE YOUR WILL REGULARLY They say the only thing worse than dying without a will is dying with an outdated will. If any of the following have occurred since your last will we highly recommend you consider updating your will: birth of new child; birth of grandchildren; beneficiaries may be irresponsible with money and may require funds to be held in a trust; death of your named executor or inability of that executor to serve. CONSIDER MAKING A SECONDARY WILL TO LOWER PROBATE TAXES Probate taxes paid to the Government in Ontario are among the highest in Canada. Since the landmark case of Granovsky v. Ontario was decided in 1998, lawyers have been recommending that certain clients consider making a secondary will which deals with assets that do not need to be probated (such as shares in a corporation or an art collection). The end goal of the secondary will may result in substantial minimization of probate taxes. WHAT IS PROBATE? In Ontario, many executors are required to go through a legal process where the court confirms the validity of the will and the executors’ authority to act on behalf of the estate, this is known as probate. This process is usually required where the deceased owned real estate or bank accounts with substantial amounts of funds. When a will is probated, probate taxes (also known as Estate Administration Fees) are triggered for the assets dealt with in the Will. MAKE A POWER OF ATTORNEY FOR PERSONAL CARE A Power of Attorney for Personal Care is a legal document in which you designate the person or people who will make personal care and treatment decisions for you if you become incapable. This document can be used to ensure that your wishes about personal care decisions will be respected MAKE A CONTINUING POWER OF ATTORNEY FOR PROPERTY A Continuing Power of Attorney for Property is a legal document in which you can designate a person or people to act on your behalf with respect to your property and financial affairs. If you become unable to make decisions about your property and you have not made a Power of Attorney for Property, it is difficult for your family to access your assets and manage them for your benefit. Instead, someone must apply to the court for permission to be your representative or a guardian must be appointed by the Office of the Public Guardian and Trustee CONSIDER TRANSFERRING TITLE IN YOUR HOME INTO “JOINT TENANTS WITH RIGHT OF SURVIVORSHIP” Your home can be held by two or more people in two ways: either as joint tenants or tenants in common. Joint tenants implies an automatic right of survivorship. For example if A dies, A’s 50% interest automatically passes through right of survivorship to B. Tenants in common implies that each tenant owns a separate undivided interest in the property. For example if A dies, a 50% interest falls into A’s estate and will be dealt with according to A’s will or by the laws of intestacy, if A does not have a will. If your home is held as Joint Tenants with Right of Survivorship, the home may not be subject to your Will and may pass outside of your estate. Thus your estate may not have to pay probate tax on the value of your home. A transfer of title should only be considered after consulting with a knowledgeable lawyer and it is not appropriate in every situation. CONSIDER DESIGNATING A BENEFICIARY FOR SPECIFIC ASSETS A person can designate a beneficiary to receive the benefit of certain assets upon death (eg life insurance policies, RRSP, pension plans, TFSAs). When the person who designated a beneficiary dies, the benefits flowing from that asset will flow directly to the person named outside the deceased’s estate (and not pass through the estate). Therefore, since the asset does not flow through the estate it may not be subject to probate taxes and creditor’s claims. Another considerable advantage is that your beneficiaries will have nearly immediate access to funds following your passing. For further information about estate planning or to schedule a consultation please contact: Ashley Doidge at 416- 446-3348 or ashley.doidge@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesJuly 30, 2019September 30, 2020
The Original Will Has Been Misplaced or Destroyed – What Options Do I Have? We have recently looked at the validity of a Will when the uncertainty of the testator’s wishes are apparent. Especially in the instance whereby the testator has more than one Will. – However, the definition of the modern-day family has somewhat evolved over the years, allowing for the recognition of diversity and the complex intricacies of families in Ontario today. That said, from a legal perspective, one may not have considered what family structure might mean and the implications in which their family could encounter should they fail to have an appropriate plan in place for the future. It is for this reason, estate planning, although often deemed to be a daunting process, is fundamental in eliminating confusion and ensuring your last wishes are observed. In any case, it is this document that will determine how your estate will be divided upon your death. – Someone, namely the selected beneficiaries, will be in receipt of any assets you leave behind and of course, if applicable, the care of minors can be determined in this instance also. While there is no legal obligation to prepare a will, a meticulously drafted Will, will guarantee that your estate and the beneficiaries are protected. But, what transpires when the original signed Will, is misplaced or destroyed? After all, there should only be one copy of the original Will and if for some unforeseen reason the Will becomes inaccessible, there may be some belief that there were intentions by the testator, to revoke it. Generally, an extensive effort to pinpoint its location will have occurred before the assumption of this conclusion. Fortunately, when the original signed Will cannot be located but a photocopy is available, the Ontario Rules of Civil Procedure provides some clarification and states the following: 75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application, (a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or (b) in the manner provided by the court in an order giving directions made under rule 75.06. O. Reg. 484/94, s. 12. Permitting the beneficiaries to bring forth an application before the court, to prove a lost or destroyed Will. The application must include a photocopy of the Will, with a declaration stating the trustee of the estate has no reason to believe that the testator destroyed the will or performed any other act to revoke the Will. However, it can only be accepted if all persons, who are believed to possess a financial interest in the testator’s estate, consent to the proof. – If so, validity and the contents of the Will is considered to be proven, thus a court appearance is unnecessary. On contrary, it may be that one or more beneficiaries object to the Will being proven, to which in these circumstances a slightly difficult process and a court hearing is anticipated, whereby the opposing beneficiaries are entitled to provide relevant documentary evidence to demonstrate their position. The Judge will then determine the outcome. Wills and Estates can be somewhat complex, for further advice on ensuring your final wishes are acknowledged or to begin planning for your estate, estate lawyers at Devry Smith Frank LLP will assess your needs and help you determine what is appropriate for you and your family. For more information on how we can assist, please contact our office online or directly on (416) 449-1400 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesDecember 4, 2018June 16, 2020 No comments yet
Is Your Will Still Valid After A Recent Ontario Ruling? A recent decision stemming from the Ontario Superior Court of Justice is likely to have far-reaching implications on wills across the Province, and your will could be one of them. On September 11, 2018, Justice Sean Dunphy ruled that wills cannot leave the distribution of one’s assets to the discretion of one’s trustees. If it does, it will be invalid. A need to avoid the “basket clause” The “basket clause” is used when an individual has more than one will. The use of the clause enables the trustees to determine what assets fall into either will, rather than enumerating each asset in one of the wills. Until Justice Dunphy’s ruling, the validity of the basket clause had not been tested in the Ontario courts, however, based on the ruling, it is now clear that the use of the clause can invalidate a will. Given how many lawyers across Ontario rely on and utilize this “basket clause,” when drafting a will, it should come as no surprise that many established and well-respected estate planning lawyers in Ontario are concerned by Justice Dunphy’s ruling. The ruling: Milne Estate (Re), 2018 ONSC 4174, The case before Justice Dunphy concerned a couple who both passed away in October 2017. The couple each had two wills, a primary will and a secondary will, with “materially identical” language in each. Justice Dunphy found that the couples’ secondary wills were valid, and their primary wills were not. Reason being, the secondary wills of each testator (the person who made the will) vested all property of the testator in the executors, and therefore, the requirement of certainty of subject-matter was satisfied. By contrast, the primary wills effectively vested in the executors the entire discretion to determine retroactively whether any assets were vested under the will at death, based upon the executors’ view as to whether probate is necessary or desirable. The court found that it was the uncertainty contained within the primary wills that made those wills invalid. The language used in a will must be certain It is imperative that wills describe with certainty any property that is subject to them. The property or assets that are subject to a will must be ascertainable objectively based upon the expressed intent of the testator, without regard to discretion of the estate trustees exercised after the will has been executed. If your will includes the “basket clause”, or a similar type of clause, you may want to consider contacting a lawyer to update your estate plans. If you have questions about a current will, or need assistance with drafting a new will, contact one of the estate planning lawyers at Devry Smith Frank. This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs. By Fauzan SiddiquiBlog, Wills and EstatesOctober 2, 2018June 16, 2020 No comments yet
Legal Grounds For Will Challenges The loss of a loved one can be a devastating and overwhelming experience. While mourning a loss, you may find yourself scrambling to ensure that all of your family’s affairs are in order, especially if you are listed as an Executor, Administrator, or Trustee of an Estate or Trust for the deceased. However, many individuals have also experienced being left out of the deceased’s will and believe that they are entitled to a share. If someone comes to that realization, it is difficult to determine where to begin, as the law surrounding challenges to a will is complicated. Devry Smith Frank LLP’s (DSF) Estates Litigation lawyers are able to advise clients on how to proceed with your matter and provide advice and support from start to finish, looking out for your best interests, to achieve the best result when challenging the validity of a will. There are three common types of legal grounds in which you may challenge the validity of a will: If the will fails to comply with the Succession Law Reform Act. Ontario requires full compliance with the formalities of execution. Wills prepared by legal professionals will comply with these rules, while a majority of home-made ones do not. If the deceased had the capacity to make the will. Did the deceased know what property and assets they have and that the will would be disposing of these assets after their death? Did they have a true understanding of any obligations they may have to spouses and children? A challenge on this ground would require hiring expert medical witnesses to review medical records and retroactively assess the deceased’s mental capacity at the time the will was made. Whether there were any suspicious circumstance surrounding the drafting of the will or whether the deceased was under any undue influence. The will must represent the true intentions of the deceased. Undue influence can occur when a person feels compelled to honour the wishes of someone making a direct or implied threat, or attempts to leverage a persons weakened state to their advantage. A child convinces a parent to remove a sibling from the will. A will signed on the deceased’s death bed leaving everything to a caregiver may give rise to a challenge on the grounds of suspicious circumstances. If you are experiencing any of the issues mentioned above, it is important to seek qualified legal advice from an Estates Litigation lawyer. For further information or assistance, please contact Estates Litigation lawyer Justin Winch directly at (416) 446-3309, or by clicking on his profile located on the right of this page. If you would like to contact our office directly, please call (416) 449-1400 and ask to speak to an Estates Litigation lawyer. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesMay 16, 2018June 16, 2020 No comments yet
When Does an Executor Pass their Accounts? A passing of accounts is essentially an estate audit. Much like the CRA can pour over your tax returns with a fine tooth comb, a beneficiary, and later a judge, can review your estate accounting. This is because an executor is required to account for his/her actions to the beneficiaries. However, there is not always a requirement for a trustee to go through the formal process of passing the estate accounts. In many situations, where there is no concern over the actions of the trustee or the estate is small in nature, the trustee simply keeps his estate accounts and the beneficiaries informally approve them. In my experience, more than 85% cases never require a formal passing of accounts. Yet, in some more complicated or contentious estates, a beneficiary can compel the estate trustee to pass the accounts by obtaining a court order. There are many reasons why a beneficiary may require an estate trustee to pass his or her accounts. For instance, if there is a lack of disclosure or communication from the estate trustee, if the beneficiary objects to certain transactions performed by the estate trustee or if the beneficiary objects to the amount of compensation claimed by the estate trustee. Often, a request for an order requiring an estate trustee to pass his or her accounts is sought along with other relief, such as a request for an order removing and replacing the estate trustee. In some cases, the estate trustee may also apply voluntarily to pass his or her accounts. There are several reasons why the estate trustee may wish to pass his or her accounts. First, the passing, if approved, exonerates the trustee from any liability with respect to the accounts (fraud and other errors are exempt). Secondly, it allows the estate trustee to take his or her compensation when the consent of the beneficiaries cannot be obtained. If you are an executor struggling with beneficiaries who are uncooperative, voluntarily passing your estate accounts is something worth considering. As a general matter of practice, the estate trustee should always maintain accurate and up-to-date accounts so that an accounting can be provided if requested or required. If you have any questions or concerns, please contact our Estates Litigation group or call us directly at (416) 449-1400 to speak with an Estates Litigation Lawyer today. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesApril 16, 2018June 16, 2020 No comments yet
