Simonin v. Simonin, 2008 CanLII 58155 (ON S.C.)

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

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

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

For more information on this topic, see:

Jordan Atin's article, The Estate Trustee During Litigation, in 'Estate Litigation' by Brian A. Schnurr. volume 2. 2nd ed. (Toronto: Thomson Carswell, 2000)

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

In this decision, Justice Brown offers clarification on the issue of where applications involving estates may be commenced.

Paul Trudelle has  previously written a post about the decision.

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

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

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

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

 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

This week on Hull and Estates, Paul Trudelle and Diane Viera, discuss procedural decisions that came out of the Ontario Superior Court of Justice and in particular a few decisions from the honourable Mr. Justice Brown of the estates list in Toronto. 

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

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

This week on Hull on Estates, Rick Bickhram and Natalia Agelini discuss the transition of disabled minors to adulthood and what kind of implications that have. They refer fairly often to a paper called "Planning for Disabled Children, the Transition to Adulthood" by Claire Burns, which was presented at the most recent Trust and Estate Summit. 

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

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

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

This week on Hull on Estates, Ian Hull and Suzana Popovic-Montag discuss innovative techniques that add value to doing a will and powers of attorney. Specifically, they discuss the concept of ethical wills and how they are different from a traditional will.  

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

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

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. The explain the difference between a will challenge and civil litigation and discuss serveral 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.

This week on Hull on Estates, Diane Vieira and Rick Bickhram talk about the Family Law Act and division of property problems. They discuss determining net family property, quantifying the assets of the deceased  and making an equalization claim.

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

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

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

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

• Re Taerk, [1975] O.R. 482 (C.A.).
• Re Silver Estate, (1999) 31 E.T.R. (2nd) 256.
• Roger Estate v. Leung, [2001] O.J. No. 2171.
• Fair v. Campbell Estate, 2002 3 E.T.R. 3rd 67, Langdon J.
• Fareed v. Wood, 2005 WL 1460361 (Ont. S.C.J.).
• McAllister Estate v. Hudgin, 2008 CanLII 42213 (ON S.C.)

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

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Endless Referrals by Bob Burg

Ian and Suzana then discuss issues to consider in estate planning for the newly separated spouse. They talk about the two different types of claims that can be made: Equalization and Claim for support.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

This week on Hull on Estates, Sean Graham and Rick Bickhram talk about the Declarations of Death Act. They discuss what happens when a person goes missing from a jurisdiction and some possible remedies.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.

Comments? Leave us a message on our comment line at 206-350-6636, send us an email at hull.lawyers@gmail.com or you can post a comment on our blog at http://estatelaw.hullandhull.com/.

This week on Hull on Estates, David Smith and Megan Connolly discuss constructive trust claims made against an estate by a non-married spouse.

Section 64 of the Succession Law Reform Act is referenced, as is the Puliver case and the Manninon case.

Rule 60 of the Rules of Civil Procedure was referenced, as well as the decision in Belanger v. McGrade Estate (2003), 65 O.R. (3d) 829 (Ont. S.C.J.).

They also cover the importance of documentation of intent and discuss potential drawbacks of the mutual will.

For more information on this topic, see the article by Debra L. Stephens, "Mutual Wills: A Primer", which was presented at The Six Minute Estates Lawyer 2007, on April 10, 2007.

These two decisions concern joint bank accounts and the decision of right of survivorship, as well as the question of presumptions resulting trust and advancement.

Craig and Bianca also refer to Rule 60.05 and Rule 60.11 from the Rules of Civil Procedure which govern contempt motions.

For more information on the conflict of laws, as it relates to this case, please see:

1. McCallum v. Ryan Estate, [2002] O.J. No. 1088 (SCJ)
2. Re Montizamber Estate, [1973] O.J. No. 1035 (SCJ)
3. Smallman v. Smallman Estate, [1991] O.J. No. 1718 (OJC - Gen. Div.).

Ian discusses a book he has recently read, Getting Things Done by David Allen. Ian heard about this book on the Marketing Monger podcast.

Ian and Suzana's Practice Tip for this podcast helps the process of fiduciary accounting go smoothly.

Paul and Sean examine this estate topic with respect to the case of Fales v. Canada Permanent Trust Co. and  Cooper (No. 2) Re.

David discusses the circumstances that surround the clauses in Section 16 of the Succession Law Reform Act and how this issue can cause estate litigation. 

Visit http://estatelaw.hullandhull.com to find more podcasts on managing estate litigation. 

Justin and Megan summarize the case and cover issues such as capacity, breach of fiduciary duty and elder abuse.

Ian and Suzana cover various principles which affect the power to encroach including the Armchair rule of construction, the Evenhand approach and the concept of malefides.

They also touch on various cases including the U.K. case of Gisbourne v. Gisbourne, and Fox v. Fox Estate (1994), 5 E.T.R. (2d) 174 (Ont.Ct. (Gem Div.))

For more information on the power to encroach, see Ian's article in Estates, Trusts & Pensions Journal, "Discretion to Encroach: Do the Beneficiary's Personal Resources Matter?"

Sean and Paul also cover the importance of detailed documentation such as Solicitor's notes and prior Wills, as well as Intestacy and Knowledge and Approval of the Will. 

For more information on this topic, see the case of Salisbury v. Dell (1993 Ont. Gen Div) and Jordan Atin's artice, The Estate Trustee During Litigation, in Estate Litigation, volume 2. 2^nd ed. (Toronto: Thomson Carswell, 2000) at p.24-1.

Visit http://estatelaw.hullandhull.com to find more podcasts on managing estate litigation. 

Referring to the texts of Jackson and Powell on Professional Negligence  and Black's Law Dictionary, negligence claims, the standard and duty of care and the question of onus are considered.

The cases of Haag v. Marshall in the British Columbia Court of Appeal, Sykes v. Midland Bank [1971] 1 Q.B. 113 and Major v. Buchanan (1975), 9 O.R. (2nd) 491 at 514, 61 D.L.R. (3rd) 46 (H.C.)are also examined.

This case concerns the application by a 58-year-old mother for support from four adult children. The issues covered included the definitions of "reasonable care" and "support", and insight into when support will be ordered for parents. 

- limitation periods and equalization payments in the context of estate litigation;

- the case of Webster v. Webster Estate, including:

- the facts of the case;

- the marriage contract;

- the Application to extend the time for the limitation period;

- Section 2(8) of the Family Law Act; and

- the Courts decision in this matter.

 

  

- mandatory mediation;

- the types of matters that have mandatory mediation;

- how mediation works in general;

- what the general timelines are for proceeding to mediation; and

- considerations for selecting a mediator.

- competing beneficiaries who join forces to challenge a Will when they do not have identical interests;

- people that need to be served in a Will Challenge;

- how to decide if you need your own lawyer or if you should join forces with the same solicitor;

- how to deal with the costs of the Will Challenge when dealing with several lawyers.

In Episode #24, we discussed the issue of disclosure of information by trustees to beneficiaries. We referred to the cases of O'Rourke v. Derbyshire, [1920] A.C. 581 (H.L.); Re Ballard Estate (1994), 20 O.R. (3d) 350 (O.C.G.D.); Fox v. Fox Estate (1996), 10 E.T.R. (2d) 229 (Ont. C.A.); and an article by David Steele, "Beneficiary's Right to Know", 4th Annual Estates and Trusts Forum, LSUC.

During Hull on Estates podcast #23, we discussed the tips for and the pitfalls of bringing motions for summary judgement in estate litigation.

1) An appropriate level of investigation

2) Protection of sanctity of the process

3) Testator conduct

Capacity litigation and the passing of accounts were also reviewed and the case of Ali v. Fruci ([2006] O.J. No. 1093) was introduced.

During Hull on Estates Podcast #16, we discussed the case of Harrison v. Fallis, a recent decision of Madam Justice Eberhard dated June 12, 2006.

In Hull on Estates Episode 12, we continued with our discussion of Scott v. Cousins and, in particular, the court's analysis of the Burden of Proof and Undue Influence.

(i) the admissibility of hearsay statements;

(ii) the role of medical evidence regarding capacity; and

(iii) the issue and use of retrospective capacity assessments.

In Podcast #10 we finished off knowledge and approval, talked about mistakes in that context, and reviewed undue influence.

During this pod cast on knowledge and approval and mistake, we discussed the following:

 (i) the general concept of "knowledge and approval" and what amounts to such;

(ii) the case of Hastilow v. Stobie;

(iii) how to ordinarily establish "knowledge and approval", and what might be needed in special circumstances;

(iv) the cases of Crerar v. Crerar, Re Phelan and Fulton v. Andrew; and

(v) words appearing in a will by inadvertence.

1.  The general concept of "suspicious circumstances" and what amounts to such circumstances

2.  The onus of proof on a propounder of a will and an alleger of undue influence

3.  The meaning of the phrases "the true will of the deceased" and the "righteousness of the transaction"

4.  The rule in Barry v. Butlin

5.  The Supreme Court of Canada's decision in Vout v. Hay

    (i)     the requirement of a "disposing memory";

    (ii)    age-related "incapacities";

    (iii)    the Re Bohrmann and Fulton v. Andrew decisions; and

    (iv)    the practicalities of determining testamentary capacity.

1. age restrictions to keep in mind when drafting a will
2. requisite mental capacity
3. the issue of insane delusions

1. constructive trusts;
2. specific devises and bequests;
3. life insurance;
4. the description of beneficiaries;
5. trusts/life interests;
6. the selection and powers of trustees, including the power to encroach; and
7. ademption.

1. the international will
2. revocation by marriage
3. lapse
4. abatement
5. the rule in Saunders v. Vautier

1. undue influence
2. suspicious circumstances
3. due execution
4. international wills

1. the solicitor's role
2. the court's role
3. defining testamentary capacity
4. Banks v. Goodfellow
5. Leger v. Poirier

Will drafting tips

a. note taking

b. checklists