Trust and Estate Practitioner (TEP) Archives - Page 2 of 12

BLOGS BEGETTING BLOGS: AN UPDATE ON MARRIAGE REVOKING A WILL

Oct 8, 2025

I love hearing from readers of our blogs. It’s exciting to know people are reading and thinking about them, but beyond that, it’s such a pleasure to connect with other lawyers and discuss the law, outside of any specific dispute.

In my blog of January 9, 2024, When Does Marriage Revoke a Will, I puzzled about the Bill 245 amendments to sections 15 and 16 of the Succession Law Reform Act, which repealed the sections on marriage revoking a Will, and when those amendments could be said to take effect. Did they apply only to marriages after December 31, 2021 (the date the amendments took effect), only to Wills made after that date, or only for Deceased people who died after that date? Without a transition provision, it was not entirely clear.

Since writing that blog, I have heard from counsel who argued the case that the court has decided this issue. In Bolotenko v Wright Estate, 2025 ONSC 1154, the estate trustee, Aleksandr Bolotenko, sought direction from the court on whether Bill 245 applied retroactively. In that case, the Deceased died in April 2022 (after the SLRA amendments), his Will was dated March 8, 1999, and he married in February 2003. The estate trustee sought direction on whether the Bill 245 applied retroactively such that the Will was not revoked. The court held that there was no retroactive application: any marriage before January 1, 2022 had the effect of revoking any existing Will.

Now comes an interesting twist, flagged for me by another lawyer/blog reader. If the repeal of SLRA section 15(a) (which previously stated that a Will is revoked by marriage) only applies to marriages after December 31, 2021, does the repeal of the saving provisions in section 16 have a similarly delayed application?

Section 16 was repealed in its entirety by Bill 245. Previously, it set out specific situations where a Will could remain in effect despite a subsequent marriage:

16 A will is revoked by the marriage of the testator except where,

(a) there is a declaration in the will that it is made in contemplation of the marriage;

(b) the spouse of the testator elects to take under the will, by an instrument in writing signed by the spouse and filed within one year after the testator’s death in the office of the Estate Registrar for Ontario; or

(c) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if he or she died intestate. R.S.O. 1990, c. S.26, s. 16.

Logically, it seems that the timing of the section 16 revocation must follow that of section 15(a). If marriages before January 1, 2022 revoked existing Wills, then the section 16 provisions remain in place to save such Wills that would otherwise be revoked. The court in Bolotenko v Wright Estate applied as much. The court at paragraphs 1-2 considers whether the Will had any saving provision as described in the old section 16 (a). This seems to suggest that section applies in its entirety to pre-January 1, 2022 marriages. For example, a spouse could continue to elect under the old section 16(b) to take under the Will, regardless of its revocation.

I look forward to reading and hearing more about the court’s consideration of these provisions!

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.

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

WHAT COURSES SHOULD YOU TAKE IN LAW SCHOOL? ESTATE LITIGATION EDITION

Sep 19, 2025

When I was in my third year of law school, 1L and 2L students constantly asked me two things:

“Do you have an outline I could use?” and…
“What courses should I take next year?”

The first one was easy (yes, I do). The second one? Much harder. My advice usually depended on which classes I did well in, or which professors I liked, not necessarily which courses would be the most useful later.

Now, I have come to realize how valuable it is to take courses that actually relate to your future practice. There are the obvious ones (like Wills & Estates or Trusts), and the not so obvious.

With a 2L summer and the first weeks of articling behind me, here are the courses that have been most helpful for my work in estate litigation so far:

1. Civil Procedure

This is where you learn the nuts and bolts of litigation: the differences between a motion and an application, counting days for court deadlines, different avenues to get a case dismissed, all that jazz. This course is most likely mandatory for all law students, but this is just an extra reminder to really pay attention to the content if you want to pursue litigation.

Taking this course is not a guarantee that you’ll become a pro at the Rules of Civil Procedure. In fact, one of my favourite professors told me that he’s been reading the same Rules (or similar iterations of it) for decades, and always finds new things in the same old places.

The takeaway here is that procedure can matter just as much as substance for your case, and a basic understanding of procedure can put you miles ahead.

2. Real Estate Law

Estates often consist of real property, and Estate Lit could involve fighting about that property, who owns it, how much of it, who is entitled to which parts, etc. You may deal with disputes regarding cottages, condos, farmland, family homes, and there are distinct legal considerations for each type of real property.

Learning how to read and decipher an Agreement of Purchase and Sale (APS), a parcel register and even a Trust Ledger in law school means one less thing to panic-Google when you end up having to do it in the course of your file. This could come up in a myriad of ways, such as checking a property’s ownership or reviewing accounts.

3. Negotiation

Most estate disputes settle, whether in the regular course of the file or at mediation. A negotiation course helps you understand your own client and the opposing party’s interests versus positions. Through practice, this course may also equip you to think outside of the box and prepare creative offers that actually get results.

Learning to identify your client’s BATNA (best alternative to a negotiated agreement) and separating their “must haves” versus the “nice to have” results will help you guide clients toward decisions that are cost effective, efficient, and satisfactory.

4. Tax Law

I took a tax course, and yes it was difficult, but the gain was worth the pain (at least that’s what I’m telling myself to cope with having to suffer through the General Anti-avoidance Rule…).

But in truth, every estate issue has tax implications: there’s the obvious estate administration tax, but there’s also underlying tax consequences to each piece of advice you give clients on their estate problems.

Even a basic understanding of tax law can improve client service as it enables us to spot which tax issues are purely within our expertise, and which require tax lawyers or accountants.

No Singular Course Prepares You

No law school course will prepare you for everything. There’s no class on gathering facts and filling in gaps of information, or parsing through hundreds of pages of medical records just hoping you’ll find something relevant to your argument, but the ones mentioned gave me a solid foundation to try my best at work.

Fara Seddigh

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

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.