On July 30, 2015, the New Brunswick Court of Appeal heard arguments for the proposed appeal of the trial decision in the McCorkill v. McCorkill Estate (“McCorkill”) matter. The trial decision was unanimously upheld. But, before I explain why, let’s go back to the start of the story. The judge in McCorkill invalidated a testamentary […]
Suppose that prior to the death of your spouse the two of you signed an agreement where you both committed not to sue each other’s estate. Also imagine that you did not get legal advice before signing the agreement. Would a judge hold you to that agreement? It depends. In 2003 Justice Desotti, an Ontario […]
Is it up to you who will have custody of your children after your death? Not necessarily. In a lecture about Halachic Wills Rabbi Moshe Taub spoke about a young Catholic woman who converted to Judaism. She did not have a will so no one was appointed as guardian of her child. While it was […]
This cheat sheet is intended as a quick reference guide for estate litigators dealing with limitation periods. For a comprehensive review of this topic I refer the reader to articles written by senior members of the bar listed in the end notes. Generally, a limitation period sets a red line which a claimant can no […]
It seems self evident and almost trite to say that a will must reflect the intention of the testator. Accordingly, those parties who come to court and submit that the will in question is authentic and valid must prove, among other things that the Testator knew and approved of the content of the will. Mistakes […]
The doctors argued that, in this context, “treatment” as defined in the Act does not include the withholding or withdrawal of treatment that had no medical value to the patient. Hence, the withdrawal of such treatment could be done without the patient’s consent. The doctors argued that the Act merely enshrined the common law which recognized a doctor’s right to withhold or withdraw treatment. The doctors further argued that according to the common law they were not permitted to continue “inhumane” treatment even if the patient or his substitute decision-maker demanded it.
The Zimmerman v. McMichael Estate 2010 CarswellOnt 3481, 2010 ONSC 2947, 57 E.T.R. (3d) 101, 103 O.R. (3d) 25 is instructive for those reviewing the Ontario law regarding the duty of an attorney for property to account, the extent of that fiduciary duty and the consequences for failing to account.
A recent case in Ontario Canada, Proulx v. Kelly, addresses how DNA testing is relevant to estate litigation disputes. When the deceased has not made a will Ontario’s laws of intestacy govern and if there is no spouse the next of kin inherit. With respect to receiving an inheritance under an intestacy, the law of Ontario is that a person is the child of his or her natural parents with the only exception being adopted children.
The question addressed by this article is whether someone can avail himself of an equitable remedy to assert an beneficial ownership interest if the creation of the equitable claim was as a result of an intentional effort to defeat creditors.