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.
May 23, 2024
When you retain a lawyer, you will often hear the terms “Trust Account” or “In Trust”, but what exactly does that mean? A trust account is a specialized bank account that lawyers use to hold funds received on behalf of a client or a third party in a regulated matter. As stated on the Law Society of Ontario website, the most common type of trust account is a mixed trust account which pools money for multiple clients. Any interest earned is remitted to the Law Foundation of Ontario.
As for the term “In Trust”, this specifies that the funds are meant for this account.
Why Does a Lawyer Have a Trust Account?
Lawyers have trust accounts to manage client funds responsibly and safely, as part of their fiduciary duty. These accounts ensure the protection and safekeeping of client funds.
The Security of a Trust Account
Trust accounts are strictly regulated by law societies to ensure the secure and ethical handling of client funds. In Ontario, trust accounts follow stringent rules set by the Law Society of Ontario. These regulations guarantee the security of client funds and ethical management of the account. Law firms are closely monitored to ensure compliance with these rules and regulations.
Why Would my Money be in a Trust Account?
Below are a few examples of when funds would be deposited into Trust:
- Retainers: As specified in a Retainer Agreement, when a client chooses to be represented by a lawyer, a retainer fee is often required to secure the lawyer’s services. The retainer funds are held in the firm’s trust account and used for future legal billings.
- Court-Ordered Funds/Settlement: Funds awarded by the court can be deposited into a trust account before being distributed to the client or third parties.
- Third Party Disbursements: During the course of a proceeding, various costs may arise, such as payments for court reporters, mediations, and expert opinions. Payments for these expenses can be managed through the trust account.
Lawyers are required to maintain a client trust ledger for each client with funds in the trust account, recording all transactions that come in and out of the account. Clients can ask to view this ledger at any time to see the flow of funds.
For more information you can follow this link to the Law Society of Ontario website: https://lso.ca/lawyers/practice-supports-and-resources/topics/managing-money/trust-accounts
We “trust” that you find this post a helpful tool in understanding the importance and security of trust accounts!
Emilia Szczepkowski
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 26, 2024
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.
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.
Mar 7, 2024
This blog post expands on Adam Giancola’s blog series about the role of litigation guardian at common law.
If your loved one is involved in litigation but lacks the capacity to understand and make sound decisions related to their court proceeding, or is a child under the age of eighteen, they will require a litigation guardian to participate in litigation. All litigation guardians must be over the age of eighteen.
A litigation guardian steps into the shoes of the party under disability and makes decisions arising from the litigation on that person’s behalf. It is a considerable and often demanding role, but one that is critically important to safeguarding the interests of parties under disability in Ontario.
Getting Started
Under Rule 7.02(2) of the Rules of Civil Procedure, any person who wishes to act as a litigation guardian, except the Children’s Lawyer and Public Guardian and Trustee, must file an affidavit with the court with the following information:
- the proposed litigation guardian’s consent to act as litigation guardian;
- confirmation that a named lawyer has been given written authority to act in the proceeding;
- evidence regarding the nature and extent of the disability;
- where acting for a minor, the minor’s birthday;
- whether themselves and the person under disability are Ontario residents (the proposed litigation guardian is not strictly required to live in Ontario, but this is a factor for the court to consider);
- their relationship to the person under disability (you do not have to be a family member);
- whether the proposed litigation guardian has an interest in the proceeding adverse to the person under disability; and
- acknowledges that they have been advised they may be liable to personally pay a costs award against the person under disability.
Responsibilities
The Rules of Civil Procedure sets out various requirements for litigation guardians:
- Litigation guardians, other than the Children’s Lawyer and Public Guardian and Trustee, must be represented by a lawyer. These fees are to be paid from the party under disability’s assets.
- All litigation guardians “must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests”. Procedurally, this means ensuring that the correct procedures are followed. Substantively, this means acting reasonably and properly for the benefit of the person under disability.
- The litigation guardian, on behalf of the party under disability, may only enter settlements that are in the best interests of the person under disability. Where there is a party under disability, judicial approval of the settlement is required and courts will only approve settlements that are in the best interest of that person. A lawyer will provide the litigation guardian with advice on what settlements may or may not be in the party under disability’s best interest.
It is also important to understand where the role of a litigation guardian starts and ends. A litigation guardian is not the same as a guardian or attorney for property or personal care. A litigation guardian’s role does not extend beyond issues within the litigation. Unless they are also an attorney or guardian of property, a litigation guardian cannot manage or hold the property of the person under disability, which includes settlement funds.
Risk
In litigation generally, the losing party is responsible for paying a reasonable share of the winning party’s legal fees; this is called a “costs” award.
As discussed above, there is a risk that a litigation guardian could be personally liable for costs awards against the person under disability. The reason for this is to prevent litigation guardians from acting frivolously or improperly at the expense of the party under disability.
This risk is why it is especially important for litigation guardians to hire competent, trusted counsel to provide advice on how to act reasonably and appropriately during litigation.
Rebecca Suggitt
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.
