Top 10 Wills, Trusts, and Estate Law Boutiques Loom Large

WHAT TO DO WHEN YOUR DEBTOR PLAYS HARD TO GET – LAND SALE

Sep 3, 2026

In my previous post, we discussed the option of garnishing a debtor’s bank account when they play hard to get. But what if garnishment isn’t enough? Initiating a land sale is another powerful enforcement remedy.

Step One – Wait

A creditor may not take any step to sell land until four months after filing the Writ with the Sheriff. Furthermore, the Sheriff cannot hold a land sale until six months after filing.[1]

However, that first four-month window shouldn’t go to waste. Use this time to gather the following required documentation so everything is ready to go. Keep in mind that different Sheriff’s offices may have specific document requirements, so always confirm in advance.

Step Two – Gather Documents While You Wait

Issued Writ of Seizure and Sale

My previous blog discussed different method of issuing a Writ – through WritFiling or the court registrar. If issued through the registrar, remember to file it with the Enforcement Office in the region where the debtor lives or owns assets. If issued through WritFiling, it is deemed both issued by the court and filed with the Sheriff (Enforcement office). Either way, ensure you have a copy of the issued Writ.

Direction to Enforce (60F)

File the Direction to Enforce (Form 60F) setting out the date of the Order and amount awarded; application post judgement interest rate; enforcement costs; dates and amounts of any payments received; and the amount owing, including the post judgment interest.[2]

This document formally directs the sheriff to enforce the Writ for the amount owing, interest and applicable sheriff’s fees and expenses.

Copy of Judgments

Provide copies of the Judgment and any costs award Judgment together with the Direction to Enforce.

Parcel Register

Download an up-to-date Parcel Register from the Land Registry Office. My previous blog breaks down how to pull a parcel register from ONLand without a PIN.

Copy of the Deed and All Registered Encumbrances

Download all underlying instruments including Deed or Transfer, mortgages and line of credits from the Parcel Register. My previous blog provides a detailed walk-through of the parcel registers, including how to identify and download these instruments via ONLand.

Mortgage Statements

You must provide all existing mortgages statements and encumbers registered on the title. To obtain mortgage statements, you may contact mortgagee using the contact information listed on the instrument. Provide them with the issued order, issued writ and the parcel register.

The Supreme Court of Canada decision in Royal Bank of Canada v. Trang held that the execution debtor implicitly gave the mortgagee consent to disclosure at the time the mortgage is granted.[3]

You may also obtain the statements by way of Debtor Examination or Court Order.

Municipal Tax Statement

Contact the local municipality for a tax certificate of the property, provide the supporting documents, and explain that enforcement for a land sale is underway. Note that municipal application fees may apply.

Certified Appraisal or Certified Letter of Opinion (Up-to-Date)

Retain a licenced appraiser for a certified appraisal or certified letter of opinion detailing the property’s current value (evaluated within the last six months). If the asset is a commercial property, a formal certified appraisal is required.

The report should include the municipal address and physical details of the property, such as street number, construction type (e.g., single-unit, semi-detached, condominium), layout (e.g., multi-story, split-level), and heating and garage specifications.

Deposit of $5,240

Prepare a cheque of $5,240, payable to the Minister of Finance, to cover the sheriff’s costs of enforcement.

Letter to the Sheriff

Include a formal instruction letter to the sheriff containing:

Clear written instructions to sell the property of the execution debtor
An up-to-date calculation of post-judgment interest
Marital and ownership details: whether held in joint tenancy or tenancy-in- common, whether the property could be considered a matrimonial home, marital status of the debtor, and the current whereabouts of the spouse or any co-habiting individual
Confirmation of whether the creditor or representative will attend on the day of sale

Step Three – Submit

Submit the completed document package and fee directly to the sheriff to schedule the sale and check periodically for updates.

While preparing for a land sale takes time and detailed documentation, it remains one of the most effective ways to recover substantial debts. By getting documents ready during the mandatory waiting period, you position yourself to move quickly and maximize your chances of a successful recovery.

Jennifer Jiang

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.

[1] Rules of Civil Procedure, R.R.O. 1990, Regulation 194 [“Rules”], Rule 60.17 (17) and (18)

[2] Ibid at Rule 60.07 (13)

[3] Royal Bank of Canada v. Trang 2016 SCC 50 at Para 49

THE PRESUMPTION OF UNDUE INFLUENCE IN BUFFA V. GIACOMELLI, 2026 ONCA 566 (CanLII)

Aug 18, 2026

Undue influence is a legal principle that addresses circumstances where someone coerces another to make a decision, most often arising in estate litigation. A finding of undue influence allows the Court to invalidate transfers of property or the execution of Wills or powers of attorney, on the basis that they were not the product of the executor, transferor, or grantor’s free will.

In my experience, undue influence is used loosely. ‘Influence’ is broad and, consequently, vague. The body of law that has emerged around undue influence is rife with terms that require significant interpretation (see “potential for domination” from Goodman v. Geffen, 1991 CanLII 69 SCC).

In the context of estate litigation, where disputes center so often upon the decisions of elderly folks, it is easy for disgruntled parties to advance their interests by alleging undue influence. Parties can rationalize their suspicions by referencing the vulnerability of seniors or conflating a loving familial relationship with nefarious ‘influence’. The result is that undue influence has become something of a one-size-fits-all allegation: one that is not as readily addressed as concerns about capacity may be through the production of medical records, or concerns about knowledge and approval through the production of a drafting solicitor’s file.

In a recent decision, Buffa v. Giacomelli, 2026 ONCA 566 (CanLII), the Ontario Court of Appeal considered the difference between ‘motive’ and ‘donative intent’ in the context of rebutting the presumption of resulting trust and the law of undue influence, with respect to inter-vivos gifts (“Buffa”). Here, the deceased Giuliana Buffa (the “Deceased”), shortly before her passing, had given her daughter, the Respondent on appeal (the “Respondent”), a total of $1.7 million. As a result, the inheritance of the Deceased’s son, the Appellant who was a 45% beneficiary of the Deceased’s estate (the “Appellant”), was substantially diminished.

The application judge made the following key findings:

The Respondent had a very close and loving relationship with the Deceased. In contrast, the Appellant and the Deceased had been essentially estranged since 2019.
The Deceased named the Respondent as a beneficiary of her RRIF and TFSA, which was accepted as “clear intention of a gift”.
The Deceased opened multiple joint accounts with the Respondent in which she deposited the sale proceeds of her condominium and other amounts from her investment accounts.
The Deceased wrote two gift letters addressing the transfer of funds into the joint accounts.
The Respondent lived “400 kilometers away” from the Deceased’s residence.
Although the Deceased suffered from dementia and other health issues near the end of her life, the disputed transfers occurred shortly before these health issues were diagnosed/worsened.

On appeal – and specifically on the issue of undue influence – the Appellant alleged that the application judge had failed to consider whether a presumption of undue influence arose, which would have shifted the burden of proof upon the Respondent. The Court of Appeal disagreed with the Appellant, and affirmed the manner in which an allegation of undue influence ought to be analyzed in the context of an inter-vivos gift:

The onus of proving undue influence is on the party who asserts it.[1]
A presumption of undue influence arises where an inter vivostransfer is made within a relationship in which there is an inherent “potential for domination”. This is found in relationships of dependency such as between parents and children or a solicitor and client.[2]
Where the presumption is found to exist, the onus shifts upon the recipient of the gift, who must establish, on a balance of probabilities, that the transfer was made with the donor’s “full, free and informed thought”.[3]
Implicit in the application and appellate decisions, Buffa is authority that the existence of a relationship of dependency on its face, does not automatically mean that there is a presumption of undue influence.[4]

On the final point, even though the Respondent:

was the Deceased’s daughter,
had been in close contact with the Deceased at the time of the transfers, and
implemented some of the transfers herself as the Deceased’s attorney for property,

the application judge found that a presumption of undue influence could not apply, and the Court of Appeal agreed. The Court of Appeal found no basis to question that there was “no evidence that the respondent acted in any inappropriate manner to convince Giuliana to give her gifts, that the transfers were made with the “full approval and consent” of Giuliana who “made her own decisions with respect to her finances”, and that Giuliana freely and deliberately gave gifts to the respondent.

Buffa demonstrates that undue influence should not be alleged loosely. Even where there are traditional indicators of dependency/influence, establishing the presumption of undue influence is difficult – not to mention proving undue influence outright! – and parties should tread carefully before litigating these issues.

Matias Gutierrez

[1] Vout v. Hay, [1995] 2 S.C.R. 976, at p. 887; Neuberger Estate v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 78, leave to appeal refused, [2016] S.C.C.A. No. 207.

[2] Goodman Estate v. Geffen, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, at p. 378; Morreale v. Romanino, 2017 ONCA 359, 30 E.T.R. (4th) 21, at para. 22.

[3] Goodman Estate, at p. 379; Foley (Re), at para. 28.

[4] Buffa at para 38

HOW DID I GET HERE?

Aug 5, 2026

Growing up, aside from the brief phase where I wanted to be a mechanic (let’s never talk about that), I always dreamed of working in the legal field.

When I graduated from high school, I applied to three programs: Criminal Justice Services, Behavioural Science, and Paralegal. After being accepted into all three, I had to decide which path to take. At the time, I believed Behavioural Science was the right choice, so I enrolled.

By my second semester in the four semester program, I realized it wasn’t the career I wanted. For those unfamiliar with the field, Behavioural Science focuses on Applied Behaviour Analysis, clinical intervention strategies, and professional ethics. Much of the program prepared students to work with children with autism and intellectual disabilities. While I found the work meaningful and rewarding, I knew myself well enough to recognize that it wasn’t a career I could see myself doing full-time while also building the family life I envisioned. Even so, I was committed to finishing what I started, and I graduated with my Diploma in Behavioural Science.

After graduation, I worked at a car dealership, first as a receptionist and later as an internal service advisor. I spent three years there before leaving at the beginning of the pandemic to move to Kelowna, British Columbia.

Once in Kelowna, I continued working at another dealership until I came across a job posting for a legal assistant at a local law firm. The posting stated that no experience was required, but I was still hesitant. I had just moved across the country during the pandemic, and taking a chance on an entirely new career felt intimidating. Despite my doubts, I applied.

That decision changed everything.

I got the job, and with it, the opportunity to begin the legal career I had always wanted.

Over the next two years, I worked in personal injury litigation while completing the Legal Administrative Assistant program through Capilano University in Vancouver, BC. I eventually moved back to Toronto where I continued my legal career and transitioned from personal injury litigation to estate, trust, and capacity litigation.

Looking back now, it’s funny how life comes full circle. Although it took a few detours to get here, I’m grateful for every one of them. Twelve years after graduating high school, and six years into my legal career, I can honestly say I’ve found the career I was always meant to have.

Sometimes the path to where you’re meant to be isn’t a straight line. But if you’re willing to take a chance on yourself, you may end up exactly where you were meant to be all along.

Samantha Valvona

YOU CARED FOR MOM OR DAD – CAN YOU BE PAID FOR IT? WHAT ONTARIO FAMILIES NEED TO KNOW ABOUT CAREGIVING COMPENSATION

Jun 11, 2026

Caring for an aging parent, grandparent, or sibling can be emotionally and financially exhausting. For many people, it means rearranging their lives: attending appointments, managing medications, coordinating care, giving up personal time, or even moving in to help.

It is often difficult, deeply personal work, and unfortunately, frequently unpaid.

After a loved one passes away, many caregivers wonder: can I be compensated for everything I did?

The answer is: sometimes. But Ontario courts have made it clear that caregiving compensation is not automatic, and successful claims are often smaller than families expect.

There is currently no statute or regulation that prescribes a formula for calculating caregiving compensation. This issue has been addressed extensively by the courts, however.

Here is what Ontario courts actually look at, and what caregivers should know.

Not All Caregiving Is Treated the Same

Courts are generally more willing to award compensation for care management and decision-making (e.g., as an attorney for personal care) than for hands-on caregiving performed by a family member.

This distinction matters. Many compensation claims fail because they blur the line between informal family caregiving and organized care management.

The Starting Point: Courts Presume Family Care Is Free

Ontario courts begin with a difficult assumption for many caregivers: adult children are generally expected to provide some level of care to aging parents without expecting payment.

As a result, compensation is usually limited to care that goes above and beyond ordinary family support.

What Courts Actually Consider

Ontario courts assess caregiving claims based on reasonableness. In Re Brown (1999), the court identified several key factors, including:

the need for the services
the nature of the care provided
the caregiver’s qualifications for the role
the value of the services
how long the care was provided

But, most importantly, courts require evidence.

General statements about “helping every day” are not enough. Courts expect specific, verifiable details about what was done, how often, and over what period of time. This is why keeping detailed logs and records of your caregiving is so important.

Common Reasons Why Caregiving Compensation Claims Fail

The case law reveals several recurring issues that frequently reduce or defeat caregiving claims altogether:

(1) The Court Finds You Would Have Done It Anyway

In Childs v Childs, the court found that even though the daughter provided commendable care for her mom, she would have cared for her mother regardless of the possibility of payment. As such, her claim was reduced from a staggering $133,000 to just $25,000.

Courts look closely at whether the caregiver expected compensation at the time the care was provided, not only after the estate became disputed.

(2) You Lived Rent-Free or Received Other Benefits

Courts may treat free housing, meals, expense payments, or other financial support as compensation already received.

In both Sasso v Sasso and Ventura v Ventura, the court held that living rent-free effectively compensated the caregiver.

(3) Care Was Shared

Where siblings, PSWs, or other family members also helped provide care, courts are often reluctant to compensate only one person, especially where others are not seeking payment.

(4) Documentation Is Weak

Poor record-keeping is one of the biggest reasons claims fail.

In Sasso, for example, a claim of nearly $200,000 was rejected largely because the caregiver kept no meaningful records and provided very little evidence about the services performed.

The Most Important Practical Lesson: Keep Records

If there is one clear takeaway from the case law, it is this: Documentation matters.

Courts cannot compensate work they cannot measure, and detailed evidence can make an enormous difference. For example, in Re Daniel Estate, the caregivers did not keep formal timesheets, but they provided detailed affidavits and obtained a professional cost-of-care assessment. That evidence helped support the claim.

Caregivers who may later seek compensation should keep:

calendars or logs of appointments
notes of time spent caregiving
records of care coordination
emails with healthcare providers
receipts and supporting documents

If you are currently providing care or believe you may have a claim relating to care already provided, speaking with an estates lawyer early can help you understand your rights and protect your position.

Fara Seddigh

YOUR ESTATE PLAN IS ONLY AS STRONG AS YOUR ESTATE TRUSTEE: HOW TO CHOOSE AN ESTATE TRUSTEE

May 27, 2026

An Estate Trustee (also known as an Executor) named in a Will is someone that will be responsible for the administration of an estate from start to finish. Choosing the right estate trustee can make estate administration significantly smoother for your loved ones. Choosing the wrong estate trustee can be costly and can delay the estate administration. For this purpose, there are several factors to consider when deciding on who should be the estate trustee of your estate.

Organizational Skills

Dealing with your own personal paperwork and finances can sometimes be overwhelming and time consuming. Now imagine someone else having to deal with it after you have passed away. One way to help your named estate trustee is to have your paperwork already organized. However, a good estate trustee would be someone who has the organizational skills to assist them with managing your estate assets, meeting deadlines, and ensuring that all tax returns have been filed.

Family Dynamics

In most cases, we see testators appoint close family members to be the executor of their estate. While there is absolutely nothing wrong with choosing a family member, you must consider if this family member will remain neutral. It may be significantly easier to choose a close family member especially if they are already aware of your assets. However, would the other beneficiaries trust this person? Do you think there would be any conflicts if this person is named as the estate trustee of your estate? These are just some of the things you must consider when choosing a close family member to be your estate trustee.

Trust

Last, but not least, choose someone you trust completely. Your named estate trustee should be someone who you know would respect your wishes regardless of what’s in it for them. This person must show that they can be reliable, diligent and be able to administer your estate with integrity. A dishonest estate trustee can create several financial and family problems that can delay the administration of your estate and cause unnecessary hardship for your loved ones.

Choosing the right estate trustee is very important in your estate planning process. By selecting someone who is organized, trustworthy and capable of handling the role, you can help reduce stress, provide a peace of mind for everyone involved and ensure your estate is handled the way you intended.

Felicia Cyril

HOW MY WORK IN ESTATES LAW CONVINCED MY PARENTS TO UPDATE THEIR WILLS

May 5, 2026

Working in Estates law, I have seen countless matters where a person has died without a Will (“intestate”), or their Will was written decades prior to their passing. As such, their Will (or lack thereof) does not accurately reflect their assets upon their death, nor their wishes for the management and distribution of their assets.

This got me thinking: ‘When was the last time my Mum and Dad updated their Wills?’. I brought this up to my parents one day and was shocked to find out that their Wills were written over two decades ago just after I was born. Having children prompted my parents to draft Wills so that they could ensure we were taken care of in the event of an accident or illness. Now that so many years had passed, my parents’ lives had changed dramatically, but their Wills did not reflect this. I knew it was time for me to have “the talk” with them (the Will talk!).

I took the time to discuss the importance of a clear, comprehensive and up-to-date Will with my parents, and it is probably one of our most important conversations to date. Shortly after we spoke, my parents made an appointment with a lawyer and had their Wills updated to reflect their current wishes and assets.

I am beyond grateful that I had the knowledge and forethought needed to persuade my parents to update their Wills. Most times, people do not draft or update their Wills because they don’t truly understand their significance. To put it simply, having an accurate attested Will is essential for three main reasons:

It will protect your assets and wishes;
It will provide clear instructions to loved ones upon your passing; and
It will help relieve any potential conflict regarding your estate.

I hope you take this blog post as an opportunity to remind your loved ones of the importance of having a formal Will!

Hannah Henley

ALZHEIMER’S IS THE LIAR

Apr 23, 2026

As a mediator, I have seen the same dynamic play out in many power of attorney disputes. Sibling A swears that the parent suffering from dementia doesn’t trust Sibling B, and wants Sibling A to act as POA for property and personal care. Sibling B tells me the opposite: the parent is highly mistrustful of Sibling A and insists that Sibling B is the only one that can be trusted to make substitute decisions about finances and health care.

Most of the time, I believe both of them.

I try very hard in our caucus meetings to ask questions aimed at encouraging each of the parties to explore whether both things might be true. I am surprised at how closed litigants are to the possibility that Alzheimer’s disease is the true villain in the dispute.

According to the Alzheimer’s Association, “a person with Alzheimer’s may become suspicious of those around them, even accusing others of theft, infidelity or other improper behaviour”. [1] Yet, in power of attorney disputes, siblings are often unwilling to consider that the parent’s suspicions about their sibling might be unfounded.

Another feature of dementia is confabulation. It is a natural coping mechanism which happens when a dementia patient attempts to fill in missing gaps in their memory with things that are untrue. Rather than confronting the painful truth that the patient has no memory of that meeting with the lawyer or that discussion with Child A, the diseased brain protects the patient by supplying false memories.

Alzheimer’s disease lies to the people suffering from it. Dementia patients commonly experience anosognosia – the inability to recognize their own memory and cognitive deficits.

Logic would dictate that when a parent suffers from Alzheimer’s, and says two different things to two different people, the most likely explanation is that the disease has rendered the parent an unreliable narrator. And yet, so many siblings caught up in POA disputes immediately dismiss the disease as a possible contributor to the dispute. They confidently conclude that the only possible explanation is that their “evil sibling” is a liar.

Perhaps it is less painful to believe their sibling is lying (particularly a sibling they never got along with) than it is to accept that the disease has already progressed to the point that the parent’s words cannot be relied upon anymore. When a child has spent a lifetime looking to a parent for support, advice, care and judgment, it is difficult to accept that certain aspects of the relationship are now gone.

Many years of litigating and mediating these disputes have convinced me that litigation is a terrible way of resolving them. Once litigants reach the mediation stage, they have spent tens of thousands of dollars on legal fees, making them even more entrenched in the righteousness of their position. Too often the stumbling block to settling these cases is the sunk costs of the legal fees already spent.

I can’t help but wonder: What if the siblings had pursued mediation from the outset instead of going to court first? What if they had consulted dementia experts first before going to legal experts? What if they had focused on dementia as the enemy instead of their sibling?

Angela Casey

[1] https://www.alz.org/

A CLIENT’S GUIDE: HOW TO READ YOUR LEGAL INVOICE

Apr 17, 2026

Opening a lawyer’s invoice can feel unfamiliar, with new terms, decimal hours, and detailed line items. This guide is designed to walk you through your invoice so you can review it with confidence and clarity.

Invoice Summary

Most legal invoices begin with a summary that provides an at a glance overview of the total charges. The summary typically includes the following:

Invoice number
Date of the invoice
Date the invoice is due
Amount due, inclusive of tax
Retainer balance/amount in trust, if applicable
Any previous outstanding invoices, if applicable
Who performed the tasks, often referred to as the “timekeeper” (partner, associate, law clerk, student)

Understanding the Billing Structure

Your invoice reflects the fee and billing structure set out in your Retainer Agreement. This agreement outlines the firm’s rate schedule, billing practices, and disbursement policies to ensure clarity in billing from the start.

Two examples of billing structures include:

Hourly Billing

The most standard billing structure in law firms is time-based billing, where time is tracked in increments (6 minutes = 0.1 hours).

Each line entry shows the following:

Date of service
Description of the task
Time spent (quantity)
Rate of the timekeeper
Total cost of the task
Any potential discounts
You may also notice “non-billable entries”, these are services that are recorded but not charged.

While reviewing your invoice, you’ll see that each entry includes clear descriptions of the work performed and how it contributes to moving your matter forward. This level of detail is meant to give you full transparency into how time is allocated and how your file is progressing. Legal work is often handled as a team, and invoices reflect this collaboration. That means rates can vary depending on who’s working on your file.

Flat Fees

For certain services, a fixed fee may apply. In these cases, the invoice reflects a single agreed-upon price for a specific task. Flat fees are commonly used for services such as mediation, consultations, and probate.

Services vs. Expenses

On an invoice, you’ll usually see a clear breakdown of the services provided along with any related expenses. Services reflect charges for the time spent completing specific tasks. Expenses, also referred to as disbursements, are costs the firm may incur on your file, such as court filing fees, process server fees, postage or courier services, fees for obtaining records, and printing expenses. These expenses are generally listed at the bottom of the invoice, after the services.

Lastly, your legal invoice is more than just a bill, it’s a detailed record of the work completed on your behalf, so it’s important that it’s clear and easy to follow. We’re always happy to help with any billing questions you may have!

Emilia Szczepkowski

ESTATES AND LIMITATION PERIODS

Apr 7, 2026

For Estates litigators, the date of the Deceased person’s death is perhaps the key piece of information we need to get from a potential client. That date is relevant for many purposes, but the most significant is that it starts a limitation period running. Under section 38(3) of the Trustee Act, most potential claims against a Deceased person become statute barred – in other words, they expire – two years from the date of the death.^[1]

Sections 38(2) and (3) reads as follows:

38(2) Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person’s property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

(3) An action under this section shall not be brought after the expiration of two years from the death of the deceased.

Unlike the standard limitation period in the Limitations Act, 2002, which covers the vast majority of claims, the limitation period set by s. 38(3) runs whether the potential claim is discovered (or even discoverable) or not. The time for bringing a claim can expire without a potential claimant even knowing it existed in the first place. This makes the Trustee Act’s limitation period particularly strict in its operation, leading to a potentially harsh result for would-be claimants. Once two years from death has elapsed, there is rarely anything to be done for a potential claimant, no matter how strong their case might have been.

That said, there are a few important ways that the two-year limitation period can be “tolled,” or suspended. Three of these are set out in the Limitations Act itself. Others exist at common law.

**Provisions Under the Limitations Act that Toll the Limitation Period**

Section 19(5) of the Limitations Act lists three specific sections of that Act that can delay the expiry of a limitation period, even limitation periods set in another act (such as the Trustee Act): Sections 6, 7 and 11.

Sections 6 and 7: Incapable Parties

Section 6 of the Limitations Act provides that a limitation period does not run against a minor during any time in which the minor does not have a litigation guardian. Section 7 provides the same for an incapable person during any time in which they are not represented by a litigation guardian. For both sections, the litigation guardian must be appointed “in relation to the claim”, not at large or in some other proceeding. As a result, someone would need to seek the appointment of a litigation guardian to address the particular claim and thereby start the limitation period running. (See section 9, which allows a potential defendant to appoint a litigation guardian for the incapable person or minor with a potential claim.)

Section 11: Settlement Discussions

Section 11 tolls the limitation period in specific circumstances where the parties are attempting settlement:

11 (1) If a person with a claim and a person against whom the claim is made have agreed to have an independent third party resolve the claim or assist them in resolving it, the limitation periods established by sections 4 and 15 do not run from the date the agreement is made until,

(a) the date the claim is resolved;

(b) the date the attempted resolution process is terminated; or

As this section describes, not any settlement discussion will toll the limitation period. Settlement offers back and forth between parties is not enough. There must be agreement to involve a third party, though there need not necessarily be agreement on the identity of that third party, or on a date or particular process. And in the case of Tribury v. Sandra, the court held that it will otherwise give a generous interpretation to the application of section 11:

In circumstances where there is ambiguity in what the parties agreed to mediate or when one of the parties to the litigation does not immediately consent to participate in the mediation process, the limitation period should still be suspended. Otherwise, plaintiffs will be reluctant to engage in a mediation process for fear that they will be ‘caught out’ in the event they did not set out a comprehensive mediation agreement.^[2]

In other words, if there is a broad agreement to mediate all issues involving an estate or arising from a death, one party cannot try to say that the limitation period on some specific issue expired during the time there was agreement to mediate.

Common-Law Doctrines that Toll the Limitation Period

Finally, the Court of Appeal has held that common law doctrines can also toll the limitation period under s. 38(3) of the Trustee Act. Moldaver J.A., speaking for the court in that case, held as follows:

In my view, s. 38(3) was exempted from the new Act so that its common law status would be preserved and it would remain immune from the discoverability rule. In other words, the legislature intended that s. 38(3) should continue to be governed by common law principles.^[3]

Fraudulent Concealment

The doctrine of fraudulent concealment is one such principle. Where the existence of a claim has been fraudulently concealed from the potential claimant, the doctrine suspends the running of the limitation period until the potential claimant could reasonably discover the cause of action.^[4]

Special Circumstances

Another common-law doctrine is the doctrine of special circumstances, which is available to permit a court to add parties to an existing action, provided the defendant knew of the claim and is not significantly prejudiced. The provision continues to apply to limitation periods that remain in effect outside the Limitations Act, despite the fact that the doctrine was abolished by s. 20 of that Act for cases governed by the limitation periods set out in that Act.^[5]

Conclusion

All of these exceptions rely on the existence of specific facts, which won’t apply to most potential claims. While they may be useful tools in your lawyer’s tool belt, by far the easiest way to make sure you are able to advance your claim against an estate is to make sure you consult a lawyer as soon as possible.

Laura Cardiff

[1] Note that the Trustee Act does not apply to all claims you may want to bring against an estate, which may have either longer or significantly shorter limitation periods. For example, the limitation period for a dependant’s support claim is 6 months from the date of probate. The best advice is always to consult a lawyer as soon as you think you may have a claim.

[2] Tribury v. Sandro, 2013 ONSC 658 (CanLII), at para 69

[3] Giroux Estate v. Trillium Health Centre (2005), 2005 CanLII 1488 (ON CA), 74 O.R. (3d) 341, [2005] O.J. No. 226 (C.A.), at para 33.

[4] Ibid at para 34.

[5] Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196 (CanLII), at para 51.

A SIMPLE GUIDE TO ESTATES, EXECUTORS, AND PROBATE

Mar 31, 2026

When someone you know passes away, there is more to manage than just the impact of their loss. There is a legal process that determines how their finances are handled, debts are paid, and inheritances are distributed. It can feel overwhelming if you’re not familiar with the terminology or steps involved. This guide breaks down the fundamentals of estates in Ontario in way that is easy to understand.

What is an Estate?

An estate is everything a person owned (assets) and owed (liabilities) at the time of their death.

Example: Bob passes away. At the time of his death, he owned a house, a chequing account with $2,000, and a savings account with $40,000. He also owed $6,000 to CRA. All these together form Bob’s “Estate.”

What is an Executor?

An executor (aka an estate trustee) is an individual who manages someone’s estate after they die. There can be more than one estate trustee, and sometimes a trust company can act as the estate trustee instead of an individual. An executor is usually specified in a will or otherwise appointed by court order.

Example: Bob passed away leaving a valid will that that names George as the executor of his Estate. George will be responsible for accessing and closing Bob’s bank accounts, paying the debt to CRA and other liabilities, selling the house, and paying the remaining money to the beneficiaries named in the will, among other responsibilities.

What exactly is “Probate”?

Probate is the term for the process of obtaining a “Certificate of Appointment of Estate Trustee” also commonly referred to as a “probate certificate”.

Example: For Sally and Donna to receive their inheritance following Bob’s death, a process called “probate” must occur. This process usually begins when Sally and Donna give the original will to George. George must then apply for a “probate certificate” by submitting an application to the court along with the original will. This application is called an “Application for a Certificate of Appointment of Estate Trustee,” or a “probate application.”

Once the court reviews George’s application and is satisfied that the will is valid, and that no other wills of Bob’s have been filed with the court, it will issue George a “probate certificate.” With this certificate, George can now begin to manage Bob’s estate. This entire process is known as “probate.”

*It is important to note that there are circumstances where probate is not required. For the purposes of this blog, I will be using an example where probate is required.

Probate Certificate aka “Certificate of Appointment of Estate Trustee”

A “Certificate of Appointment of Estate Trustee,” also known as a “probate certificate,” is a document issued by the court that authorizes a person (the executor) to manage an estate.

Example: George needs to close Bob’s bank accounts. He goes to TD Bank and explains that he is the executor of Bob’s estate and wants to access and close his accounts. Since George isn’t listed as an account holder, the bank has no record of him and asks for proof that he’s authorized to act on Bob’s behalf. George must provide a copy of his probate certificate issued by the court to prove he has authority to close the accounts.

Beneficiaries

A beneficiary is a person(s), charity, or organization who receives a gift (aka an inheritance) from someone’s estate after they die.

Example: Bob’s will names his two children, Sally and Donna, as beneficiaries. According to Bob’s will, each of them will receive $100,000.00 from his estate. George is responsible for making this happen. George will pay Sally and Donna each their $100,000.00 using money from Bob’s estate.

This is just one example of how an individual’s estate may be administered after their death. There are many other situations to consider. For example, if a person dies without leaving a will (dying “intestate”), the process for applying for probate will be different. Or, if a will exists but its validity is challenged by a beneficiary or an interested party, the estate may have to go through legal proceedings (“litigation”). Regardless of the specific circumstances, it is important to understand the basic principles of estates in case you ever find yourself responsible for managing a loved one’s estate.

Stacie Chrysanthopoulos

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