Court concept Hourglass and judge gavel on table

Two- or Ten-Year Limitation Period for Equitable Trust Claims Against Estates? Case Comment on Ingram v Kulynych Estate

On September 12, 2024, the Ontario Court of Appeal released their decision in Ingram v Kulynych Estate.[1] The Court considered which limitation period to apply to a constructive trust claim against an estate: the two-year limitation period under s. 38(3) of the Trustee Act[2] or the ten-year limitation period under s. 4 of the Real…

judge banging gavel
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Best to Have Clean Hands When Accusing a Trustee of Delay

In a recent, 2024 Ontario Superior Court of Justice decision, Estate of Angela Sebanc v. Peter Sebanc1, Justice Bloom considers, among others, granting a motion to dismiss ongoing litigation in light of significant delays in proceedings. Facts: Angela Sebanc passed away on February 26, 2017 and was survived by her five children, including Victor and…

people fighting over legal document

Court Sanctions Lawyer for Use of Privileged Documents

The Supreme Court of British Columbia highlights the importance of solicitor-client privilege in De Cotiis Estate. The lawyer representing one of the estate’s beneficiaries, made numerous references to privileged documents in various court documents. The deceased’s former lawyer and executor brought an application to prevent the deceased’s son from continuing to use privileged documents in…

Last will and testament with wooden judge gavel

Court of Appeal Upheld Lower Court’s Decision to Rectify a Will

In the recent Court of Appeal decision, Ihnatowych Estate v Ihnatowych, 2024 ONCA 142, the court held that under the common, law, the courts can rectify deficiencies and errors in a Will. The courts should be concerned with a testator’s intentions not being followed because of errors or deficiencies in a Will. Re Estate of…

Old couple make will

Ontario Superior Court Rules That Previously Revoked Will Can Be Revived With a “Holographic” Note

In the recent case of Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315, the Ontario Superior Court of Justice concluded that the handwritten notes of the deceased served to revive his final will and testament. Facts Harold Franklin Campbell passed away on June 11, 2020, survived by his two children from his first marriage,…

Close up house model on blur background of real estate agent and customer

Legal Limbo: Ontario Court Says No to Resulting Trusts – You Can’t Have Your Cake and Eat It Too!

In the recent case of Falsetto v. Falsetto, 2023 ONSC 1351[1], Justice Bell decides on the issue of whether a resulting trust can be established in a situation where property title is placed in a third party’s name, primarily to comply with the Planning Act[2]. This case highlights the importance of documenting intentions when transferring property to…

Beneficiary Forced to Pay Legal Costs of Estate Trustee During Litigation out of Inheritance
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Beneficiary Forced to Pay Legal Costs of Estate Trustee During Litigation out of Inheritance

Naming an estate trustee during litigation (“ETDL”) is meant to reduce conflict and streamline the administration of an estate. However, problems can arise when a former estate trustee (and beneficiary) continues to cause conflict and frustrate the efforts of the ETDL. This was the case in the recent Ontario Superior Court decision Estate of Georgia…

Is There a Duty to Advise a Beneficiary if a Testator Removes Them as One?
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Is There a Duty to Advise a Beneficiary if a Testator Removes Them as One?

In some instances, estate litigation can involve challenges to the will by individuals who believe they should have been a beneficiary of the estate in specific capacities. In the recent decision of Fair v. BMO Nesbitt Burns Inc.,the Court of Appeal of Ontario was asked to determine whether a beneficiary to an investment account was…

Son Challenges Validity of Father’s Will
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Son Challenges Validity of Father’s Will

In a previous post, we blogged about the requirements for a valid will. One of those elements is testamentary capacity, meaning that the will-maker must have the necessary mental capacity to understand the nature of their property and provide instructions regarding preparation of the will. Lack of testamentary capacity is a common basis which individuals…

Limitation Periods and Estate Litigation in Ontario

Limitation Periods and Estate Litigation in Ontario

The discovery of a claim can create some uncertainty for parties, especially when they are running up against a limitation period. Section 5 of the Limitations Act states that a claim is “discovered” on the earlier of: Are there Exceptions to the Two-Year Limitation Period Deadline? The Limitations Act contains several exceptions to the two-year…