CONSIDERATIONS IN MOVING FORWARD WITH A WILL CHALLENGE

In my experience, it’s quite common to have a call with a potential client that involves the following situation:

  • The potential client has concerns about their relative’s last will and testament. The relative’s Will was changed shortly before the relative’s death, reducing the potential client’s share of the estate, or removing the potential client from the Will entirely.
  • The relative exhibited memory issues and confusion in the years leading up to their death. The relative may have also shown signs of paranoia or behaved in previously uncharacteristic ways.

In some cases, the facts provided by the client strongly suggest that the relative was unlikely to have had the capacity to make the disputed Will. However, most situations do not fit into this category and there are often many gaps in the potential client’s knowledge.  This is often because some key information and documentation is not available to review.  For instance, documents such as medical records and the file of the lawyer who prepared the Will are not normally going to be available until a court Order is obtained for their release. But one cannot obtain such an Order without first starting a court application to challenge the Will.

Once the Order for production of documents is obtained and the medical, legal, financial, and other documents are reviewed, the case may look quite different than it initially appeared.  It may be a better or worse case than the lawyer initially might have thought given the very limited information that was first available. For this reason, it is very important to re-assess the strength of a Will challenge case at each step of the litigation process.

On a related point, a client should not wait too long to challenge the validity of a Will. The estate trustee named will be busy administering the Estate and will eventually distribute the assets if they aren’t prevented from doing so through a court Order which ties up the administration. This type of Order is typically granted when a Will is challenged. As well, it is extremely important that a limitation period not be missed, as a limitation period could have the effect of blocking a Will challenge from proceeding. (Legal advice will be required to determine when the limitation period begins to run as the particulars of each situation must be considered.) But, generally speaking, while some things may age well, a Will challenge case is not one of them and it’s generally best to commence a claim as soon as possible.

 

Angelique Moss

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.

WHERE THERE IS A FOREIGN WILL, THERE IS A WAY

In my previous blog about probate, we discussed what “probate” or a “Certificate of Appointment of Estate Trustee” is, and the different residency and security requirements for probate in Ontario, depending on whether the deceased person had a Will. Sometimes, clients will come to us having already obtained probate or been appointed as estate trustee in a jurisdiction outside of Ontario, then discovering that the deceased owned a bank or investment account in Ontario and needing Ontario probate to get that asset liquidated. In today’s global landscape, we are encountering these situations with increasing frequency.

Where the deceased did not have an Ontario Will, the Estates Act provides that estate trustees can apply for a “Resealing of Appointment of Estate Trustee” or an “Ancillary Appointment of Estate Trustee” in Ontario. Resealings and ancillary appointments have the same effect of recognizing the foreign grant of probate in Ontario as if it were originally granted by the Ontario Superior Court of Justice. In other words, a resealing or ancillary appointment will provide the estate trustee with authority to act on behalf of the estate in Ontario and administer the Ontario assets. The difference between the two is where the original grant of probate was obtained.

Where the applicant was appointed as estate trustee by a court (a) outside of Ontario but within Canada, or (b) outside of Canada but in a Commonwealth country, they should seek a Resealing of Appointment of Estate Trustee. The applicant does not have to be an Ontario resident, and their foreign estate trustee appointment could have been made with or without a Will. A bond is required unless the original grant of probate was made with a Will and the applicant is a resident of Canada or elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.

If the applicant was appointed as estate trustee by a court that is not part of the Commonwealth, they should seek an Ancillary Appointment of Estate Trustee. The applicant does not have to be a resident of Ontario. A bond is required unless the applicant is a resident of Canada or the elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.

If you find yourself unsure about what kind of probate to apply for or which forms to submit, feel free to reach out to our team and schedule a consultation with us.

 

Zara Wong 

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.

THE ART OF BEING A LAW CLERK

As someone who considers themselves to be creative, whether that’s painting nail art or finding the right outfit, it all boils down to having the right color, fit, and the perfect pair of shoes to get the job done.

The same can be said about being a law clerk at Casey & Moss. Over the last 6 years, I have learned the following formula for a happy working environment:

Passion/Interest: Enjoying the work you do and being motivated to do it goes a long way. It allows you to not only do the work but also find joy in doing it. It also impacts the quality of your work you provide to clients when you have a genuine interest in the task at hand.

Organization and Planning Ahead: “If you fail to plan, you plan to fail”—at least that’s what they always say. Keeping track of court dates, deadlines, and limitation periods along with your everyday tasks can pile up and overwhelm you if they are not carefully organized. Set priorities for your tasks, make a to-do list, and find a work plan that helps you get through your files. One thing I aim to do is skim through my emails at the start of the day, delete any junk or promotional emails, and move emails that do not have a task attached. For emails that do have a task, I determine if it will take one minute (saving a document or a simple reply) or if it might take 30 minutes (drafting an affidavit and supporting documents).

A Little Creativity: Sometimes the task at hand requires a little creativity or a new approach. Start by discovering new ways to operate the software and programs that your firm currently uses to improve your productivity and quality of work. When I first started, I had no idea how to use a MacBook, but not only did I learn the basic functions to get the work done, but I also found shortcuts, quick keys and steps that made what I needed and wanted to do much easier.

Expect the unexpected and adapt to change: Life is unpredictable, and so is work. A last-minute court date, a new file with a fast-approaching limitation period or a settlement can change the plan for the file. Sometimes things happen that change the course of the work that we have already started and learning to adapt to that change and work to accommodate the new plan helps to alleviate potential stress. My motto when I have a heavy workload for the week or even the month is “take one step at a time” and “thank you, Jesus.” It reminds me that I’m human and gives me peace.

Take a Break: In everything, there should be balance and burnout is real, so take a break. Use your vacation days and relax. When you leave work, remember to enjoy your life, go to the gym, go to the movies, take a nap, go swimming, go to church, and clock out and have fun. Life is all about balance; remember to find it.

These are just a few things that have worked for me in the past and still work now. Happy clerking.

 

Olesya Johnson

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.

TOTAL ECLIPSE: EVERY NOW AND THEN I GET A LITTLE BIT SENTIMENTAL

On April 8th, the whole city stopped what it was doing while we watched, through the clouds, as the total eclipse darkened the skies for almost five minutes.

At Casey & Moss, some of us watched the eclipse with colleagues from our downtown Toronto office building. Some of us stayed home with our kids and watched fro m our backyards. Others travelled out of the city to the path of totality where we managed to find clear skies. As we watched, wherever we were, we all shared our photos and reactions with each other.

The eclipse was a unique moment of connection with our colleagues, neighbours, and community. We wanted to share some of the photos that our team captured during that moment.

 

Capturing the Full Eclipse

The Eclipse Over the Skyline

Fun Eclipse Glasses

Just Before the Full Eclipse

 

Cara Zacks

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.

 

 

END OF LIFE CARE: DID YOU KNOW?

Dying with Dignity Canada is a charitable organization that is 100% funded by private donations. The work of their national chapter is probably best known. It engages in advocacy, in particular to expand access to Medical Assistance in Dying (MAID). However, Dying with Dignity’s local chapters are committed to community education on a variety of topics related to end of life, including how to access care, what the available options are, what questions to ask and what information to consider in decision making. This is practical, accessible information that can be of real use to families faced with tough decisions. As a starting place, their website has a variety of information and educational resources.

Local chapters run lunch and learn sessions and other educational seminars, and will respond to enquiries for private sessions geared towards a specific audience. Their sessions can educate attendees on palliative care and practical tips for individuals and their families trying to get the best care that will meet their goals, whatever those may be and in their individual circumstances.

 

Laura Cardiff 

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.