Sep 12, 2024
Typically, the expectation when someone dies with a Will is that the beneficiaries named in the Will inherit the estate. Similarly, if someone dies without a Will, it seems reasonable to assume that the estate will be distributed to the beneficiaries established under the rules of intestacy in the Succession Law Reform Act.
While this is all true, there may be a person (or even more than one person) not named in the Will, or who isn’t a beneficiary according to the rules of intestacy, but who is still entitled to funds from the estate, if that person is considered a dependant of the deceased. These dependants may make a claim against the estate for funds, even if they aren’t estate beneficiaries.
When a dependant claims support from an estate, this may mean that beneficiaries end up inheriting a smaller portion of the estate than they otherwise would. It also means that assets that typically pass outside the estate, like an insurance policy, a registered account like an RRSP, or even a jointly owned property, may be considered part of the estate for the purpose of the dependant support claim. This is the case even if these assets have already been distributed to the beneficiaries.
But who qualifies for dependant support from the estate? There is a two-part test set out in the Succession Law Reform Act that helps answer this question. First, the person claiming support must be a dependant of the deceased, meaning they were either a spouse, parent, child, or sibling of the deceased to whom, immediately before death, the deceased was providing, or had a legal obligation to provide, support. Note that “spouse” includes a common-law spouse who was never married to the deceased.
If the person fits within the definition of “dependant”, the next part of the test is to determine whether the deceased made adequate provisions for proper support of that dependant. For example, is that dependant already a beneficiary of the estate receiving proper support? Or is that dependant a beneficiary of the deceased’s life insurance policy and already receiving proper support that way? If not, the dependant may be able to bring a court application for support from the estate.
Lawyers can advise potential dependants, as well as estate trustees, on whether there is a potential dependant support claim, when that claim must be brought, and how it may impact the distribution of the estate.
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.
Jul 26, 2024
Accepting my offer at Casey & Moss was an exciting moment for me. However, as my start date approached, my nerves set in – what will my 2L summer look like? Reflecting on this summer, I can confidently say it has been one of the most rewarding experiences of my law school career.
To give prospective students an idea of what it’s like to work at Casey & Moss, I decided to share my experience working here this summer.
You dive right into the (interdisciplinary) world of estate litigation
Estate litigation combines elements of family law, real estate, tax, civil litigation, disability and at times, even criminal law. During my summer, I had the opportunity to engage with complex legal issues, such as disputes over wills, guardianship matters, and fiduciary obligations. Each case presented a new challenge, requiring meticulous attention to detail and a deep understanding of the legal principles governing estate law. I often found myself reviewing notes from not only wills and trusts courses, but also tax and civil procedure, and I quickly became familiar with family and real estate law.
Hands-on learning and mentorship
One of the highlights of my summer was the hands-on experience I gained through working closely with the Casey & Moss team. From day one, I was entrusted with substantive tasks that allowed me to develop my legal skills. Whether it was drafting pleadings, conducting legal research, or assisting in client meetings, I always felt like a valued member of the team.
The mentorship at the firm has been invaluable. Whether it was a lawyer on file or a partner, everyone was always willing to share their knowledge and offer guidance. Their feedback on my work helped me refine my legal writing and analytical skills, and their open-door policy ensured that I never felt hesitant to ask questions or seek advice.
Courtroom exposure and advocacy
This summer, I attended several hearings, both on Zoom and in person, at various courts (including the Ontario Court of Appeal!). I saw the real-world application of concepts I had studied and researched, and I gained a practical understanding of litigation strategies and procedural nuances.
I also had the privilege of observing several mediations. Observing mediations offered a firsthand look at the art of negotiation and the delicate balance between advocating for a client’s interests and finding common ground with opposing parties. This experience underscored the importance of patience, empathy, and creativity in resolving disputes outside the courtroom, providing me with a deeper understanding of how effective mediation can lead to satisfactory outcomes for all involved.
A collaborative firm culture
Casey & Moss truly has a fantastic firm culture. The firm holds numerous team meetings every month, where everyone can share their ideas, express concerns, and collaboratively discuss legal strategies. This collaborative approach not only enhanced my learning experience but also demonstrated the importance of a supportive work culture in achieving successful outcomes for clients.
Conclusion
As I return to law school for my final year, I carry with me the lessons learned and the confidence gained while working at Casey & Moss. My time here has been nothing short of transformative. Big thanks to everyone at Casey & Moss who has made my summer such a rewarding experience.
Finally, if you are a current law student who is interested in chatting more about my experience at Casey & Moss, do not hesitate to reach out!
Diana Begaliyeva
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.
Jul 19, 2024
We moved into our office two years ago and there was always something (ahem… billable work) which put us off hanging art on the walls. When we finally got some pieces a few weeks ago we realized we didn’t really want to hang them ourselves. So Cara Zacks asked the local shop that had printed them for us if they knew someone who could do it. The owner, Vinny, said he would be glad to do it himself on the Friday before the Canada Day weekend. This was perfect as we had given our staff the day off.
When Friday morning turned to afternoon and then late afternoon, Laura Cardiff and I had our doubts Vinny would show but Angela Casey, eternally optimistic, had no qualms whatsoever, and right she was again. Vinny arrived while I was wrapping up an intense potential client call. When it ended, l wanted nothing more than to head home and forget about the week. But when I opened my office door there was Vinny, standing rather precariously on our furniture, attempting to hang art all the while laughing and trading tales with Angela. I knew I wouldn’t be leaving this party anytime soon.
It quickly became clear to us that Vinny (who never represented himself this way) was not a professional picture-hanger. Exhibit A: he came without a tape measure. Exhibit B: his frequent exclamations of “well, I cocked that up!” whenever he messed up a measurement. But Vinny’s humour, enthusiasm, and can-do attitude made up for any shortcomings in his skills.
The three of us worked together to hang the canvases over the course of a couple hours. What would have otherwise been an uneventful Friday afternoon turned into a fun kick-off to Canada Day weekend.
Cheers to all of the Vinnys who make life brighter, in the most unexpected ways. And check out Mr. Photo Canvas for all your photo canvas printing needs!
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.
Jul 9, 2024
When you find yourself in a situation where you need to contact an Estates lawyer, you might ask yourself: What should I have ready? In all matters involving Wills, Estates, incapable persons, and so forth, it is essential that you have the appropriate information at the ready.
1. Your Name and Contact Information
Intake calls are meant to gather essential information about you, as a potential client, and about the matter at hand. Oftentimes, the first thing a clerk will ask you for is your full name and contact information (e.g., phone number, email, etc.). This is necessary so that the firm can keep track of their potential clients, ensure prompt and effective communication, and schedule introductory meetings with potential clients.
2. The Name and Date of Death of the Deceased or The Name of the Incapable Person
During an intake call, the clerk will ask you whether the matter involves a deceased or incapable person. For a matter involving a deceased person, the clerk will require their full name and date of death. In the case of an incapable person, the clerk will only require their full name. This information is required to complete a conflict search (which I will discuss in the next section).
- If There is a Will or No Will – (Deceased)
- If the matter involves a deceased person, the clerk will ask whether they died with a will (“testate”) or without a will (“intestate”). This is so that the assigned lawyer knows whether instructions have been left about the distribution of Estate assets.
- If There are POA Documents – (Incapable)
- If the matter involves an incapable person, the clerk will ask whether there is/are Power of Attorney(s) for personal care and property. This is so that the assigned lawyer knows whether there is someone to make decisions on behalf of the incapable person with respect to their care and property.
3. All Parties Involved in the Matter
When law firms take calls from potential clients, it is required by the Law Society of Ontario (LSO) that the responsible lawyer clerk, etc. complete a conflict search of all names involved in the matter. This way, we can ensure that we are not currently representing (or have previously represented) any parties involved, which would create a conflict.
Any significant persons involved in the matter need to be shared with the correct spelling of their name, any names they are “also known as”, as well as their role in the matter. For example, you need to explain whether the individual is an Estate Trustee, Beneficiary, Power of Attorney, etc.
4. A Brief Summary of the Situation At-Hand
By providing a brief summary of your matter, the clerk can gain a better understanding of the services you require and determine whether their firm would be best suited to your needs.
For instance, you can discuss any general issues you have encountered with other parties, and how it may be interfering with the administration of an Estate. This communicates what type of matter the firm might be dealing with and the next steps the assigned lawyer would need to take.
While specific questions about fees and retainment cannot be discussed at the time of the intake call, providing this information is essential for Estate lawyers to fully understand your situation and know how to best help you.
Hannah Henley
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.
Jun 21, 2024
Although Casey & Moss’s offices are in downtown Toronto, we represent clients throughout the province of Ontario (not to mention clients who live outside Ontario and abroad).
When a client first retains us to respond to or to start litigation, they often ask what Ontario city the litigation is going to proceed in. This is especially true if the client, the other parties, the incapable person, or the deceased’s assets are located in different cities across Ontario.
There are several considerations that go into a decision about where to start litigation in Ontario.
First, if our client has been brought into an already-ongoing court proceeding as a respondent or a defendant, we will generally agree to the jurisdiction of the litigation selected by the applicant or plaintiff. Most court appearances and hearings under an hour long continue to take place over Zoom. As a result, it is just as easy for us to appear in court in Toronto, Kingston, or Thunder Bay. We no longer have to travel to courthouses outside Toronto, unless we are appearing on long motions, application hearings, or trials. Mediations and cross-examinations can also take place remotely, especially if parties and lawyers are based in difference cities around the province. This makes it easy and cost-effective for us to represent clients involved in litigation outside Toronto.
If our client is commencing litigation, several considerations come into play when choosing where to bring the proceeding.
The Rules of Civil Procedure say that if there is no statute or rule requiring a proceeding to be commenced in a particular county, then the proceeding may be commenced at any court office in any county named in the originating process.
We often recommend that our clients start litigation in Toronto, even if they or the other parties aren’t located in Toronto, because Toronto is home to the Superior Court of Justice Estates list.
The Estates List is a specialized court in Toronto comprised of judges who hear proceedings exclusively involving issues of estate, trust and capacity law. Currently, there are four judges sitting on the Estates List. Each of these judges has extensive experience with estate litigation. The judges not only have familiarity with these types of proceedings, but court procedure on the Estates List is tailor-made for estate litigation. For example, we can book 15-minute scheduling appointments before an Estates List judge so that we can quickly and inexpensively get orders for production of documents like medical records, which is frequently one of the first steps in estate litigation. Another factor is that there is mandatory mediation for estate matters in Toronto, which can mean earlier settlement discussions and chances for resolution.
In our experience, if we bring a proceeding on the Estates List in Toronto, counsel in other cities rarely object or seek to have the proceeding transferred to a different courthouse. This is because of the expertise and efficiency of the Toronto Estates List, as well as the fact that counsel outside Toronto don’t have to travel to Toronto to attend in-person scheduling appointments, case conferences, short hearings, or mediations. All of this can be done over Zoom.
The decision about where to start litigation is something we discuss early on with our clients and is a decision we make together, based on what we think will be most efficient and cost-effective.
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.
