May 6, 2024
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.
Apr 18, 2024
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.
Apr 12, 2024
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.
Mar 15, 2024
In the process of enforcing a Judgement, debtors sometimes prove elusive and play hard to get, making the pursuit of what’s rightfully yours extra difficult. However, there is a simple but strategic move that might just turn the table around – garnishing the debtor’s bank account.
Step 1: Locate and Read the Cheque
To garnish the debtor’s bank account, your first move is to investigate the account details. Starting by combing through past financial transactions between the creditor and the debtor, particularly those involving cheque payments, can be the game-changer. If the debtor has made any payment by cheque, you can use the cheque as evidence to support your belief that the debtor holds bank account(s) at the financial institution. In case the original cheque is lost, don’t worry – your bank can provide transaction records, which will include an image of the cheque.
On the cheque, essential information such as the address of the debtor, the information of the financial institution (name and address), and the bank account information can be found.
The bank account details can be found within the string of numbers at the bottom of the cheque, including the 5-digit transit number which identifies the branch where the account was opened; the 3-digit financial institution code; and the 7 to 12-digit account number which specifies which bank account where the money will be withdrawn from. Please note that the cheque number at the top right corner might also be found at the bottom left corner.
In case where no payment has been made by the debtor, it is crucial to gather as much information about the debtor’s financial situation as possible. You should seek legal advice and conduct an Examination in Aid of Execution.
Step 2: Requisition for Garnishment
As per Rule 60.08 (4) of the Rules of Civil Procedure, the creditor shall file a Requisition for Garnishment (Form 60G), a copy of the Judgement, an Affidavit, Notice of Garnishment (Form 60H) and a blank Garnishee’s Statement with the registrar.
The Garnishee is a third party that holds property of the debtor that can be used to satisfy the debtor’s debt, in this case, is the financial institution holding an account for the debtor.
The information discovered from the cheque becomes the key to prepare the legal documents, such as the name and address of the financial institution, as well as the debtor’s bank account information which should be detailed in your Affidavit. You also need to calculate the principal owing amount as well as the post-judgement interest to-date. Check our previous blog post to see how to calculate post-judgement interest.
Two important notes: First, a Notice of Garnishment can only name one debtor and ONE Garnishee. If multiple entities own debt to the debtor, prepare separate Notices of Garnishment to each of the Garnishees. Secondly, the filing should be made where the court proceeding (resulting in the Judgement being enforced) was commenced, as the registrar will forward a copy of the issued Notice of Garnishment to the Sheriff where the debtor resides. You can find the Sheriff’s office address and district via the link here, provided by the WritFiling website.
Upon receiving the issued Notice of Garnishment, serve it with a blank Garnishee’s Statement to the Garnishee (the local branch of the financial institution); also serve it with a copy of the Affidavit on the debtor.
Step 3: Issuance of the Garnishment Cheque
The Garnishee is required to pay the funds in the debtor’s account to the Sheriff’s office within 10 days after being served with the Notice. This payment should be made by a bank draft payable to the Minister of Finance. Once the cheque is cleared, the Sheriff’s office will issue the cheque to the creditor or the creditor’s counsel.
In some special cases where the debtor’s account is jointly owned, the creditor will be notified by the Garnishee and must serve the co-owner a Notice to Co-owner of the Debt along with a copy of the Garnishee’s Statement. In these circumstances, the creditor should seek legal advice from a lawyer.
When your debtor plays hard to get, garnishing his or her bank accounts would be the strategic move to go!
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.
Aug 25, 2023
When your spouse passes away, you often have way too much on your plate to worry about money. However, once the time comes to deal with your finances, it is important to know what options you have available under current Ontario legislation.
If your spouse had a valid Will when they passed away, you can easily collect your entitlement. However, if for some reason this is not what you were hoping for, rather than challenging the Will or going through the trouble of a dependant support claim, you can choose to use the Family Law Act (FLA) to your benefit.
Under s.6 of the FLA, surviving spouses have the right to choose between their entitlements under the Will, or claiming an ‘equalization payment’ as if they were getting a divorce. This is called spousal election.
Now, determining the value of an equalization payment can be a little tricky, especially once tax implications become involved. Generally speaking, this payment will be comprised of the difference between each spouse’s net family property (NFP). If the deceased spouse has a higher NFP, the surviving one is entitled to that difference.
Therefore, it is in the surviving spouse’s best interest to minimize the value of their NFP as much as possible.
Deducting Disposition Costs in NFP Calculations
If there is a large asset that will be expensive to liquidate, a common issue is how to add this to the NFP. Can this asset’s value be reduced by listing the ‘capital gains’ as a liability, even if the asset is not disposed of just yet?
This was one of the issues in a 1994 Ontario Court of Appeal case called Sengmueller v. Sengmueller. Here, it was noted that tax consequences are appropriate to take into account when determining net family property amounts.
However, strict rules apply:
- “There must be satisfactory evidence of a likely disposition date of the assets.”
- “The costs of disposition will be inevitable when the owner disposes of the assets or is deemed to have disposed of them regardless of whether the asset needs to be realized to make an equalization payment.”
So, for example, if a surviving spouse is about to sell her home, ‘capital gains’ can be listed as a liability as of valuation date, regardless of whether she needs to sell the home or not. As long as there is enough evidence that the sale of the home is likely, the costs of this sale can be used to reduce her NFP.
This was more recently affirmed in Tremblay v Tremblay, where the court acknowledged that ‘disposition costs should be deducted in determining the value of an asset for equalization purposes unless it is unclear when, if ever, the value of the property will be realized.’ It was determined that ‘the value of the asset for equalization purposes is the net value after tax and other disposition costs’.
So, make sure to keep this in mind when deciding between spousal election or collecting your entitlement under the Will – sometimes tax law makes all the difference!
Colleen Dowling
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.
