Toronto Estates List Archives - Page 3 of 10

COMMONLY ASKED QUESTIONS BY POTENTIAL CLIENTS REGARDING ESTATES AND WILLS

Oct 3, 2025

As the first point of contact for our firm, I receive numerous calls from potential clients seeking legal advice and assistance with respect to estates and wills.

The following are three commonly asked questions and answers to these questions:

1. Probate

Q: I am named as the executor and estate trustee in a Will. I am at a loss. Where do I start?

A: Reaching out for legal advice is the first step, which you have taken.

As an executor and estate trustee, you may have to probate the Will and obtain a Certificate of Appointment of Estate Trustee (CAET).

In a case where the deceased died intestate (without a Will), before you start an application for probate it is recommended that you check whether anyone else has already started a court application or has been issued a certificate. This can avoid an objection to your application.

It is also important to know the value of the estate and what makes up the estate, for example, real estate and personal assets.

You can apply for a Small Estate Certificate if the estate is valued at up to $150,000. If the estate is valued at more than $150,000, generally, you should apply for a Certificate of Appointment of Estate Trustee.

When applying for the CAET, you will need to supply the court with the following original documents:

Probate Application for a Certificate
Request to File an Application for a Certificate
Draft Certificate
Last Will and Testament of the deceased (if available) and Affidavit of Execution
Original or notarized copy of the Proof of Death Certificate for the deceased
Cheque for estate administration tax (also known as probate tax)

Within 180 calendar days of receiving the CAET, you must file an Estate Information Return (EIR), which lists the value of the deceased’s assets at the time of death with the Ministry of Finance.

(For further information on how to obtain assets from financial institutions, please see our blog of July 18, 2025 by Olesya Johnson).

2. Joint Accounts

Q: I held joint accounts with the deceased and the bank is asking for a probate certificate before they can release the money. Why?

A: Some joint accounts may or may not fall within the value of the estate.

A joint account with right of survivorship is an account held by two or more people where the surviving account holder(s) receive the funds upon the deceased’s death and generally does not need to go through probate.

In the case of joint spousal accounts, they typically fall outside the estate by right of survivorship.

However, in the case of joint accounts between parent and child, it could fall within the estate under the presumption of resulting trust. In this case, the bank may require the estate trustee to obtain a probate certificate before releasing the funds.

The testator’s intention as to whether the joint account is to be shared with other beneficiaries of the estate or simply pass directly to the survivor should be considered.

(For further information on joint accounts and the presumption of resulting trust, please see our blog of May 15, 2025 by Cara Zacks).

3. Delayed Distribution and Accounting of Estate Assets by Estate Trustee

Q: It is almost two years since the estate trustee obtained probate. The estate trustee has not made final distributions and is not providing any accounting information on the estate. What can I do?

A: An estate trustee can generally distribute the estate assets within a year. However, based on the complexities of the estate, it could take longer.

Once the estate has been administered, the estate trustee should pass their accounts to show that the estate assets are properly managed. This is called a “passing of accounts”. If the estate trustee fails to do so or refuses to provide information on the estate, any of the beneficiaries in the estate can retain a lawyer to make an application to the court to compel the estate trustee to pass accounts or have the estate trustee removed.

Roslyn Blackette

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.

GOOD CHANGE: AMENDMENTS TO THE RULES FOR SETTLEMENT APPROVAL MOTIONS FOR PARTIES UNDER DISABILITY

Sep 5, 2025

On June 16, 2025, important amendments to the Rules for obtaining court approval of settlements involving parties under disability came into force.[1] These amendments preserve the open court principle to the greatest extent possible while ensuring that incapable parties are not prejudiced by processes designed to protect them.

Under Rule 7.08 any settlement involving a party under disability[2] is not binding on that party without a judge’s approval of the settlement. A judge must find that the settlement is in the best interests of the incapable party, considering the benefit received under the settlement, litigation risk, proportionality, and the desire to settle.[3] This safeguard is built into our judicial system to ensure that parties under disability are not taken advantage of.

To obtain settlement approval, the incapable party’s litigation guardian must bring a motion to the court, supported by an affidavit from the litigation guardian explaining the reasons in support of the settlement, as well as an affidavit from the litigation guardian’s lawyer providing a position in respect of settlement.

Under the previous rules, it was necessary to serve the motion for settlement approval on all parties to the litigation. In some cases, to show a judge why a settlement is justified and in the incapable party’s best interests, it is necessary to disclose weaknesses of the incapable party’s case. This created a risk: if the settlement were not approved, the other parties could potentially benefit from prejudicial information disclosed in the approval motion. Counsel were required to carefully consider what information was necessary to provide the court without undermining the party’s position if the settlement was not approved.

The new amendments contain key changes that ensure parties under disability are not prejudiced by these motions.

Rule 7.08(3.1) now allows settlement approval motions to be brought without notice to other parties and without requiring service of the supporting materials (unless a judge orders otherwise).

Pursuant to Rules 7.08(4.2) and 7.08(4.3) counsel are required to redact or omit any information subject to solicitor-client privilege or that could prejudice the person under disability prior to filing the motion materials. Now, only the judge hearing the motion is provided with a copy of the complete and unredacted version of the materials.

Rule 7.08(4.4) requires that settlement approval motions be determined in writing, without the attendance of the parties, and dispenses with the requirement to file a factum. This prevents opposing parties from hearing oral submissions on evidence that was redacted or omitted from the written materials.

These amendments helpfully and thoughtfully ensure that the court receives fulsome information about a party’s litigation risk, weaknesses in the case, and any other factors that support settlement, without risking prejudice to the incapable party’s position if the settlement is not approved.

[1] This blog focuses on Rules 7.08(3.1), 7.08 (4.2), 7.08(4.3), and 7.08(4.4). For a review of all amendments that came into force on June 16, 2025 please review O.Reg 50/25.

[2] Parties “under disability” include minors and adults who lack the mental capacity to engage in litigation.

[3] Spicer v Wawanesa Mutual Insurance Company, 2023 ONSC 3221

Rebecca Suggitt

HOW LEARNING AMERICAN SIGN LANGUAGE MADE ME A BETTER LAWYER

Aug 27, 2025

I’ve always enjoyed learning languages. I am a native English speaker, my mother tongue is Cantonese, I have a minor undergraduate degree in French, and I took a beginner German course while on exchange in Hamburg, Germany. If I hadn’t studied law, I would have probably enjoyed studying linguistics or mastering another language! American Sign Language has long intrigued me, so this past Spring I decided to finally take the plunge and enrolled myself in the 10-week introductory ASL class held at Bob Rumball Canadian Centre of Excellence for the Deaf. I am proud to say that I passed the 1A class and will be enrolling in the 1B class next term.

Being an ASL student reminded me what it’s like to learn a new subject from scratch. I’ll readily admit that it was hard! I greatly admire my enormously patient teacher, who was never frustrated at her students even when she had to repeat herself eight times for us to finally understand what she was trying to convey.

Reflecting on this experience, I realized there were many lessons that I could take away from my ASL class and apply to my day job that could make me a better lawyer.

Sharper Observation Skills

ASL is, obviously, a visual language. What you may not know is that there are many signs that are very similar and are only distinguished by a slightly different hand shape or hand movement. Facial expressions are a crucial part of signing: eyebrow raising and lowering are used when asking questions, and mouth movements are required to accompany some signs. Body shifts are used to convey contrast or different options. So, it is important to carefully watch the signer and pay attention to their non-verbal cues that can change the meaning of their words.

Non-verbal cues are just as important in lawyering as learning ASL. Lawyers must use their observation skills to monitor whether a judge is getting impatient or losing steam during long oral submissions, or if a judge is suddenly paying more attention to a certain argument being made. We keep a close eye on the non-verbal conduct of a witness being examined – if they are being fidgety, avoiding eye contact, or other body language signals that they are uncomfortable with a question, the examiner might want to lean in on that line of questioning. Learning ASL has taught me to be a keen observationist, as visual cues are often just as important as oral cues in our profession.

Clear and Concise Communication

ASL is a very concise language. A few signs can convey a lot of meaning. Whereas the English language can contain a lot of filler words, ASL gets right to the point. It is a good reminder that effective communication can be achieved through a few carefully chosen and purposeful words, rather than long, run-on sentences with lots of legalese and flowery language. Whether that’s in written legal submissions, oral advocacy, or simply explaining legal concepts to clients, I strive to hone the skill of clear, concise, and persuasive communication in my practice.

Empathy and Patience

The most important lesson of all that I learned during my 10 weeks of ASL class is to have more empathy and patience. Learning a new language from scratch was so much fun and an academic challenge at the same time. I have much more empathy for my clients and self-represented litigants who are learning the “legal language” and navigating the legal system for the very first time. I imagine that learning a new language and being involved in litigation for the first time are similar experiences, as you are being thrown in and immersed in a brand new setting, and expected to keep up and follow along as your instructor speaks or signs rapidly in a foreign language. It is extremely intimidating.

Being a student of ASL has reminded me that I, as a lawyer, need to slow down, remember that my clients may not understand everything I’m saying, explain concepts in digestible and plain language (and to explain it again if they need it repeated), and encourage my clients to ask questions. I endeavour to be as patient, understanding, and kind to my clients as my wonderful ASL teacher was to me and my fellow students.

Zara Wong

FROM REASONS TO JUDGMENT: SETTLING AN ORDER UNDER RULE 59.04

Aug 26, 2025

I will never forget the first time I received a judge’s Endorsement. We had won our case, putting an end to months of protracted litigation. I remember poring over the judge’s reasons, carefully reviewing the analysis and spotting all of the cases taken from our factum. After the excitement subsided, one of my colleagues pointed out something I had no idea was required: we now needed to convert the judge’s reasons into an issued Order. Even though the judge’s decision was immediately effective, the precise terms of that decision needed to be set out in a signed Order, approved by the parties as to form and content and issued and entered by the Court registrar.

But what happens if the parties cannot agree on the form and content of the draft Order? What if there are disagreements about what the judge intended to order in his or her reasons?

Thankfully, Rule 59.04(9) of the Rules of Civil Procedure provides a clear mechanism for settling an Order where the parties remain at a deadlock. Rule 59.04(9) states that

[i]f an objection is taken to the proposed form of the order in the course of its settlement before a registrar, the registrar shall settle the order in the form the registrar considers proper and the objecting party may obtain an appointment with the person who made the order to settle the part of the order to which objection has been taken, in which case the objecting party shall serve notice of the appointment (Form 59D) on all other parties who participated in the hearing or conference and file it, with proof of service, at least seven days before the appointment date.[1]

In other words, if the parties cannot agree on the form of the Order, any party can serve a “Notice of Appointment to Settle Order” (Form 59D) to attend before the judge who made the Order to settle its terms. Similar to a Notice of Motion, a Notice of Appointment requires the objecting party to set out the purpose of the appointment, the grounds for the relief being sought, and the documentary evidence to be relied on at the appointment. Best practice is to include all relevant materials that the judge will need to settle the Order, including the underlying Endorsement, the originating process or motion, the form of the draft Order proposed by the objecting party, and the draft proposed by the responding party or already settled by the registrar.

If the Order was made by a court consisting of more than one judge, the appointment will be before the judge who presided at the hearing or, where unavailable, any other judge who participated in the hearing.[2] Should the judge cease to hold office or become incapable after making the order but before it is signed, any other judge may settle and sign it.[3]

It should be noted that settling an order is not a mere formality. For example, if the Order contemplates the payment of money into or out of Court, a judge’s Endorsement will not be sufficient to effect payment.[4] Moreover, a party wishing to appeal a court’s decision will not be able to perfect their appeal without first getting an issued order. The Court of Appeal recently confirmed that an appeal always lies from the court’s order, not its reasons.[5] It is the appealing party’s obligation to take all necessary steps to perfect their appeal, including drafting the order and, failing agreement of the parties, seeking an attendance to settle it.[6]

[1] Rules of Civil Procedure, RRO 1990, Reg 194, Rule 59.04(9).

[2] Ibid, r 59.04(10).

[3] Ibid, r 59.04(14).

[4] Ibid, rr 72.02(2); 72.03(2).

[5] Toronto Standard Condominium Corporation No. 2931 v Tsatskin, 2025 ONCA 323 (CanLII) at para 6.

[6] Ibid at para 7.

Adam Giancola

DON’T FORGET ABOUT YOUR FURRY FRIENDS WHEN YOU PREPARE YOUR WILL (BUT LET’S BE REAL… HOW COULD YOU FORGET ABOUT THEM?)

Aug 21, 2025

If you had kids, wouldn’t you make sure they were taken care of if something were to happen to you? Of course. So why aren’t we doing the same for our furry friends?

I’ve worked in Estates for 5 years and have been an animal lover for 28. I’ve seen a lot of Wills, however, I’ve noticed that none of them specify what would happen to their pets if they were to pass.

Now I know what you are thinking, not everyone likes these messy, smelly, hairy, EXPENSIVE (but adorable) animals, but did you know that 60% of Canadian households own at least one pet? By my calculations, that means I should have come across at least a handful of Wills that mentioned their fur babies.

I suspect that people don’t include their pets in their Wills because they either don’t know you can, or they assume a loved one will automatically care for them. Whether it be because they couldn’t imagine giving the animal away or because it may be the last living thing tied to your deceased loved one. However, that’s not realistic to assume nor expect, because animals are a big responsibility.

Now, who is “qualified” to take on the responsibility of being a fur parent?

Consider their lifestyle. Do they have enough space/room? Are they renting or owning their home? Are they physically fit/capable of giving the animal the care it needs? Does anyone in the household have pet allergies?
Consider the time commitment. What is their work schedule? Do they have any upcoming travel plans? If they have any kids already, are the kids ready to interact safely with a pet (and is the pet able to interact safely with children?) Are they planning to start a family soon?
Consider the financial responsibility. Can they afford the ongoing costs and unexpected expenses?

The list goes on.

Please make sure you consider these questions when you are drafting your Will and planning to include your pets. If you have a specific person in mind, ask yourself the above questions, and once you think you have a suitable person, have a conversation with them and make sure they’re agreeable to taking on the responsibility. And it never hurts to have a backup – just in case!

The reality is, if you don’t properly consider the future care of your fur baby, they can end up in a shelter. Shelters are extremely overcrowded and underfunded, and with the cost of living getting more and more expensive, people can hardly afford kids, let alone animals. While children are almost always accounted for in the case that their parents pass, pets are not, and there aren’t the same securities and care put in place to keep them homed, fed, and cared for. Abandoned pets are often (and sadly) euthanized.

It’s important we also don’t forget the furry friends that have already passed and live on a shelf in your loved one’s home. Don’t let them end up in the trash or on a new shelf in a Value Village or Good Will.

Now, here is where I say something crazy, stay with me. I don’t have kids. My dogs are my kids and that is crazy to some people because animals don’t share the same DNA. But real animal lovers will get it.

Introducing the Casey & Moss LLP furry friends. The emotional support behind our toughest days.