PRACTICE AREA: Estates & Trusts

The central feature of the Henson trust is that the trustee is given ultimate discretion with respect to payments out of the trust to the person with disabilities for whom the trust was settled.

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Who can compel the release of a will drafting lawyer’s file in the case of a challenge to a will? The file of a will drafting lawyer is subject to solicitor-client privilege.

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Miller Thomson on Estate Planning - Update on Multiple Wills, Milne Estate (Re), 2019 ONSC 579

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Matrimonial Claim Brought Under Guise of Estate Claim The Estate of Lois Jean Davey v.

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A revocable beneficiary designation is one that can be altered or revoked by the insured without the beneficiary’s knowledge or consent (s. 190(1) and (2) [Part V of the Insurance Act [R.S.O. 1990, c. I.8]]) .

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The Ontario Court of Appeal allowed an appeal by the defendant estate trustees from a judgment concerning expenses for a residence that was subject to a cohabitation agreement. Plaintiff and deceased had cohabitation agreement that provided the plaintiff with option of remaining in residence. On appeal, it was held that given that plaintiff was not paying all of costs of maintaining residence, defendants could reasonably take position that she had not complied with agreement and that residence should be sold.

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[The judge] must consider whether [the plaintiff] has standing to bring an application under Rule 16-46 [of the Queen's Bench Rules], to require proof of the will in solemn form, or for an order revoking the grant of probate under Rule 16-47. . . . . . Rule 16-46 ... permits an application by any person who “... is or may be interested in the estate.” The grammatical and ordinary meaning of the word “may” in Rule 16-46 connotes possibility ... the use of the phrase “may be interested” means that a person does not have to establish a definite interest in the estate to establish standing. A possible interest, within the context of the applicable law and the specific factual circumstances, is enough to ground standing.

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In the deceased's will, he only left his wife a life estate in his share of a condominium. The deceased's children were made his attorneys through a power of attorney. The children were beneficiaries, and one of them was executor. The wife, through her daughter as litigation guardian (applicant), brought an unsuccessful application for an accounting and equalization under Pt. IV of Family Property Act. An appeal was filed and dismissed. The court held that the applicant was not entitled as of a right to an accounting before a master. The applicant was entitled to an accounting, which occurred before applications judge.

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As with any trust, a valid will must satisfy the “three certainties”: certainty of intent to create the trust, certainty as to the subject-matter or property committed to the trust and certainty as to the objects of the trust or the purposes to which the property is to be applied.

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CED: An Overview Of The Law — Wills — Rectification and Curing Deficiencies

This excerpt from the updated Wills title examines Canadian law with regards to rectifying and curing deficiencies in wills

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The testatrix provided in will that if any of her children, or combination of them, wished to purchase farm property, they could do so at 75 per cent of appraised market value provided they entered into agreement of purchase and sale with her trustee within one year of date of her death. The testatrix's intention in the face of competing offers from the children could not be ascertained.

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Quinn Estate (2018), 2018 CarswellBC 543, 2018 BCSC 365 (B.C.S.C.)

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