Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a mistake in a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

A Will is only valid if the Testator knew and approved its content.  If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases.  In Barylak v. Figol, 9 E.T.R. (2d) 305, for example, a residuary clause had been inserted by mistake.  That clause gave the residue of the deceased’s estate to a fund to create a scholarship for needy students of Ukrainian origin. The Testator never gave his solicitor instructions to include that offending residuary clause. There was no evidence that the Will was ever sent to the Testator prior to its execution for review by him. Even if it had been, there was no evidence as to whether the Testator’s command of written English was such that he would have fully understood it. Also, there was no evidence that a true copy of the executed Will was left with the testator or that a copy was sent to him. Overall, the Ontario Court of Justice (General Division) held that the Testator knew nothing about the residuary clause and that it did not reflect his expression. Accordingly, the Court deleted the clause from his Will based on the doctrine of mistake.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice as a dependent, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you in this regard.

What if you have been inadequately provided for in someone’s Will?  Well, if you’re a dependent in Ontario, you might have some legislative recourse.

Section 58(1) of the Succession Law Reform Act allows a deceased’s dependents to apply to the court for support where the deceased (either through a Will or absent one) has not made adequate provision for their proper support.  A dependent is defined under s. 57 of that Act to include your spouse, former spouse, common-law spouse, parent, grandparent, child, grandchild, brother, and sister. A dependant may have to prove that they are a dependent and entitled to financial support under s. 58(1) in court. If the court decides that the person is a dependant and that person can show a need for financial support, then it may order that a certain amount of money be paid to them out of the estate.

If you think that you may be entitled to more from an estate than the amount provided for in a Will, or if you need to determine the rights of others when preparing your Will, consult with a lawyer (by making a post on Dynamic Lawyers).

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will or International Will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will or International Will.

Along with other provinces and countries, Ontario is a contracting party to the Convention Providing a Uniform Law on the Form of an International Will.  This means that, if a Will is made in the form of an International Will (i.e. in accordance with the form prescribed by that Convention in the Schedule and Annex in the Succession Law Reform Act) concerning two or more contracting parties, then the Will is valid as between those parties irrespective of where it was made, the location of the assets and of the nationality, domicile, or residence of the testator. At present, some the contracting parties to the Convention include: Belgium, most Canadian provinces (Manitoba, Newfoundland, Alberta, Saskatchewan, Prince Edward Island, New Brunswick, and Nova Scotia), Cyprus, Ecuador, France, Italy, Iran, Portugal, the Russian Federation, the United Kingdom, and the United States of America.  An important difference with an International Will is the requirement that an authorized person (in Ontario, this means a lawyer) attach to the Will a Certificate establishing that the obligations of the Convention have been complied with.

written by admin \\ tags: brampton, canadian provinces, domicile, educational purposes, legal advice, mississauga, nationality, new brunswick, ontario lawyers, prince edward island, professional assistance, russian federation, succession law reform act, testator, uniform law, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

In this blog, I’ll be discussing what a Will is.

When you die, you may be leaving behind valuable assets, such as real estate, bank accounts, and personal possessions.  Taken together, these assets are referred to as your “estate”. A Will is a legal document which declares your final wishes concerning the disposal of your assets after you die. According to section 1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, a Will also includes a “Codicil”, which is a document that cancels certain parts of your Will or adds new parts to it and which must be read together with your Will as one document.  A person who makes and signs a valid Will is referred to as a Testator (for a man) or Testatrix (for a woman).

A Will identifies who will responsible for administering your final wishes.  While this individual is commonly referred to as an “Estate Trustee”, “Administrator”, “Executor”, “Personal Representative” or “Liquidator”.  He or she will pay out liabilities, manage remaining assets, and distribute the remaining funds of the estate (the “residue”) to the beneficiaries designated under the Will. A Will may also identify Guardians in the case of minor or incapable dependents left behind.

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Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice with respect to contentious proceedings in wills and estates matters, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Wills and Estates lawyers in Ontario registered who can assist you and provide you with free information and quotes on contentious proceedings in estates matters.

I thought it would be worthwhile to discuss some of the procedural steps involved in commencing contentious legal proceedings against an estate and / or estate trustee in Ontario.  The situation may arise where a person wants to challenge the estate trustee’s administration of a will.  Here are some of the major procedural steps involved in this process:

A. Application for Direction
Rules 75.01 through to 75.09 of the Ontario Rules of Civil Procedure deal with commencing contentious legal proceedings against an estate and/or Estate Trustee.  To initiate these legal proceedings, a person having a financial interest in an estate must first apply to the court for directions by preparing and submitting an Application for Direction as to the procedure for bringing any matter before the court: Rules 14.05(1) and 75.06(1).

An Application for Directions (Form 75.5) must be served on all persons appearing to have a financial interest in the estate (e.g. trustee and beneficiaries) at least 10 days before the hearing of the application: Rule 75.06(2).

So the steps involved for bringing the Application for Directions are:
(1)   prepare the Application for Directions;
(2)   call and book the application date with the court in the appropriate jurisdiction;
(3)   attend and file the Application for Directions with the court and pay the $173 court fee;
(4)   personally serve the Application for Directions on every other defendant;
(5)   file an Affidavit of Service with the court (this is a sworn document stating that the defendants have been served);
(6)   fax a confirmation form (Form 38B) that the application is proceeding as scheduled by 2:00 p.m. at least 2 days prior to the Application being heard; and
(7)   attend and argue the application before a judge on the motion date.

B. Court Order
On the hearing of an Application for Directions, the court may (among other things) give directions to determine the issues to be decided, identify the parties involved, address the method and times for service, and direct that the plaintiff file and serve a Statement of Claim (Form 75.7): Rule 75.06(3).

An order giving directions shall be in Form 75.8 or 75.9: Rule 75.06(4).  The Court has a broad discretion in determining the appropriate procedures going forwards: pleadings (such as a Statement of Claim, Statement of Defence, etc.) may be dispensed with and replaced by a court order that simply directs the issues to be tried.  Furthermore, cross-examinations on affidavits could be used to replace examinations for discovery.

C. Statement of Claim
When a Statement of Claim (Form 75.7) is ordered to be delivered, it must be served on each defendant.  Among other things, the Statement of Claim could raise allegations against the Estate Trustee and seek damages for:

• Breach of trust;
• Breach of fiduciary duty;
• Acting unfairly and in bad faith;
• Unjust enrichment;
• Breach of Trustee Act; or
• Breach of Estates Administration Act;

The Statement of Claim could also seek an accounting of all of the assets, financial records and documents of the deceased prior to and following the death of the deceased.

D. Claim against Estate
Claims against an Estate are made by way of Form 75.14: Rules 75.08(2).

E. Statement of Defence or Statement of Defence and Counterclaim
Each defendant that is served with a Statement of Claim must serve on every other party and file with the court (with proof of service) a Statement of Defence or a Statement of Defence and Counterclaim: Rules 75.07(1)(a).  Alternatively, each defendant can serve and file with the court a Statement of Submission of Rights to the Court, which is discussed below: Rule 75.07(1)(b).

F. Reply or Reply and Defence to Counterclaim
In response to a Statement of Defence or Statement of Defence and Counterclaim, the plaintiff may then deliver a reply or reply and defence to counterclaim: Rule 75.07(2).

G. Statement of Submission of Rights
By submitting a Statement of Submission of Rights to the Court, the defendant acknowledges that it is not entitled to receive their costs in the proceeding and will not be liable to pay the costs of any party to the proceeding, except indirectly to the extent costs are ordered by the court to be paid out of the estate: Rule 75.07.1(b).

The party must also acknowledge that they are not entitled to receive notice of any step taken in a proceeding except for the notice of trial and copy of the judgment disposing of the matter, if the proceeding is not settled: Rule 75.07.1(a).  A judgment on consent will not be given to the party submitting their rights unless they have consented or have been personally served with a Notice of Settlement and have not objected to it: Rule 75.07.1(c).  The form for giving notice of a settlement to a party who has submitted their rights to the court is Form 75.11: Rule 75.07(1)(c)(ii).  If the party who has submitted their rights to the court wishes to object to the settlement, they must file a Rejection of Settlement (Form 75.12): Rule 75.07(1)(c)(ii) [source: Karen M. Gibbs, Archie J. Rabinowitz, Risa Awerbuck, Danielle Joel, Elisabeth V. Atsaidis, and Ryan Lay, The Practical Guide to Ontario Estate Administration, 5^th ed., (Toronto, Canada: Thomson Canada Limited, 2006), p. 239].

Typically, the rule permitting a defendant to file a Statement of Submission of Rights to the Court will be used by a beneficiary who does not wish to become embroiled in costly and protracted litigation.  Nevertheless, by filing the Statement of Submission of Rights to the Court, the person is protected by ensuring that they receive notice of the trial or, if the matter is being settled, no judgment can be signed without notice to them or without their written consent [source: Karen M. Gibbs, Archie J. Rabinowitz, Risa Awerbuck, Danielle Joel, Elisabeth V. Atsaidis, and Ryan Lay, The Practical Guide to Ontario Estate Administration, 5^th ed., (Toronto, Canada: Thomson Canada Limited, 2006), p. 239].

H. Notice of Contestation of Claim
If a claim is made against an estate, the defendant representing the estate may serve a Notice of Contestation upon the party making the claim, contesting all or part of the claim: s. 44(1) of the Estates Act.  Within 30 days after receiving a Notice of Contestation, the claimant must file with the court registrar a Claim Against Estate (Form 75.14) verified by affidavit and a copy of the Notice of Contestation.  The claimant must then bring an application to the Court for an order allowing the claim and determining the amount of it.  If the claimant does not make such an application within the time prescribed above, then they shall be deemed to have abandoned the claim and it is forever barred: s. 44(2) of the Estates Act.

Once the claimant files all the necessary paperwork, the court registrar will fix a trial date which then typically proceeds in a summary manner (often without pre-trial discoveries) unless a judge orders otherwise.  However, the defendant may request that documentary and oral discovery be held before the trial of the application [source: Karen M. Gibbs, Archie J. Rabinowitz, Risa Awerbuck, Danielle Joel, Elisabeth V. Atsaidis, and Ryan Lay, The Practical Guide to Ontario Estate Administration, 5^th ed., (Toronto, Canada: Thomson Canada Limited, 2006), p. 240]. At the trial, the judge will hear the parties and their witnesses and can make such order as he or she considers just.

I. Next Steps after Pleadings
Once the pleadings (i.e. Statement of Claim, Statement of Defence, etc.) are exchanged, the action will proceed much like any other civil litigation case (i.e. exchange of affidavits of documents and oral discoveries of the parties) unless the court orders otherwise.  Once discoveries are completed, a Trial Record is prepared and filed, and the matter goes on the trial list.  The matter will come up first for a pre-trial conference.  If no settlement arises out of the pre-trial conference, the matter proceeds to trial [source: Margaret E. Rintoul, A Practitioner’s Guide to Estate Practice in Ontario, 3^rd ed. (Markham, Ontario: Butterworths Canada Ltd., 1997), p. 157].

At the end of the trial, a judge will render a decision and will also typically award some legal costs against the losing party to pay for the other side’s legal fees and disbursements.

J. Motion for Summary Judgment
If the defendant does not respond to the Statement of Claim within the time prescribed by the Rules (i.e. typically 20 days after being served with the Statement of Claim), then the claimant may ask the court registrar to note that defendant in default and then bring default proceedings against him or her to obtain an award for damages and proceed to enforce that award: Rules 18 and 19.

If the defendant responds with a Statement of Defence, then the claimant may bring a motion for summary judgment (Rule 20.01(1)) or to strike out that Statement of Defence on the grounds that it discloses no reasonable defence (Rule 21.01(b)).

Conclusion
At the end of the day, commencing and maintaining contentious legal proceedings is complex, costly, and takes time.  There are a number of procedural steps along the way, each with its own time limit and substantive requirements.  It’s best, if you’re contemplating or in the middle of contentious proceedings, to consult with a lawyer who has the knowledge, skills, and experience in dealing with these kinds of proceedings.  FYI, you can make a post on Dynamic Lawyers to find such a professional (it’s 100% free and anonymous!)

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Dynamic Lawyers is looking for a Toronto wills and estates lawyer to respond to a new public post (i.e. someone is looking for a Toronto wills and estates lawyer to help them with their wills and estates dispute).  Here is the public post.  The post indicates a time line of 6 months and a budget of $10,000.  If you are or know a Toronto wills and estates lawyer who does this type of work, please give me a shout at michael@dynamiclawyers.com or sign up here.  Remember: Dynamic Lawyers is currently having a 1 month free trial period for new lawyers who sign up today.  There’s no risk and no obligations!  What are you waiting for?  Register today!

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There are over 17,000 individuals in Toronto who can call themselves a Toronto attorney.  Each Toronto attorney typically has his or her own specialty.  The day of the general practitioner is not as it once was (and is slowly fading away).  In fact, specialization is a preferred strategy to earn above-average returns in any given industry.  Besides, think of how hard it would be for a lawyer who ‘does it all’ to keep up to date with the changing laws in every given legal area.  It’s way too difficult and that’s where negligence cases may arise.

In any event, I thought I’d spend some time discussing the various types of Toronto attorneys that you can come across on a day-to-day basis.  Here’s the first breakdown of types of Toronto attorneys (please keep in mind that this list of the types of lawyers out there is not exhaustive):

• Toronto Real Estate Attorneys: help you buy and sell residential, investment, farm, cottage, recreational, condominium, and cooperative properties.  They also you get a mortgage financing and refinancing as well.

• Toronto Personal Injury Attorneys: help you litigate, settle, or otherwise resolve claims arising from:
  • accident benefits claims
  • dog bites
  • disability claims
  • medical malpractice
  • motor vehicle accidents
  • negligence actions
  • personal injury claims
  • product liability
  • slip and falls

• Toronto Business Attorneys: help you to incorporate and organize, merge/amalgamate, and dissolve your business.  They can help prepare, review, interpret, revise, negotiate, litigate, and resolve the following business documents:
  • shareholder agreement
  • partnership agreement
  • joint venture agreement
  • franchise agreement
  • commercial leases
  • business acquisitions
  • regulatory compliance
  • constructions contracts
  • employment agreements

• Toronto Wills and Estates Attorneys: they offer services from a basic will and powers of attorney  to more complicated tax-planning structures, such as inter-vivos trusts and estates freezes.  They can also help personal representatives in the administration and distribution of estate assets.  Finally, they can litigate on behalf of beneficiaries or the estate trustee on issues such as mental capacity of the testator, validity of a will, etc.

• Toronto Family Attorneys: they can help you with your marriage breakup by drafting a separation agreement.  They can also help you with issues such as divorce, spousal and child support, child custody, possession of the matrimonial home, and the equalization of net family property.
  

• Toronto Criminal Defense Attorneys: they can help represent you against government bodies that have charged you with criminal or provincial offences (e.g. careless driving), including:
  • DUI (driving under the influence)
  • assault
  • sexual assault
  • fraud
  • theft

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There are many avenues for average Torontonians to find not only a lawyer, but the right lawyer for their particular case.  Unfortunately, most of these avenues are inconvenient and sometimes very costly (e.g. an initial meeting with a lawyer could run you a few hundred bucks!).

More often than not, people find a lawyer through word of mouth referrals from family, friends, colleagues, or other professionals they do know (e.g. bankers, accountants, consultants, real estate agents, insurance agents, paralegals, other lawyers they know, etc.).  This, in fact, is how most lawyers find their clients.

Alternatively, people may turn to the Yellow Pages and simply pick an advertisement and make a phone call.  I’ve been told that people tend to pick the biggest advertisement because they somehow believe that the bigger the ad, the more successful the lawyer or law firm.

They may even turn to the Law Society of Upper Canada’s Lawyer Referral Service, which charges users $6 for a 30-minute conversation with one lawyer.

The point here is that finding the right lawyer for you is an important undertaking.  You don’t want to have the lawyer who drafted your will or acted on your house deal to represent you in a criminal case: they may not be up-to-date on court room procedure or have experience cross-examining adverse parties.

Torontonians generally only need a lawyer for a limited time and have a limited budget for such engagements. Yet it is hard for these people to distinguish lawyers and law firms from each other, especially given that many small and medium law firms have a general practice. It may also be intimidating for them to approach lawyers with their legal issues, given that doing so may cost money (e.g. $500 for the initial hour visit) and ultimately retaining a lawyer could be very expensive given the uncertainty of hourly billings.

These factors make ordinary Torontonians shy away from seeking or hiring lawyers. Those sophisticated Torontonians who surf the Web looking for a lawyer are hungry for more information than what is provided in the YellowPages or a newspaper advertisement. They are doing a Google or Yahoo search to seek out a particular type of attorney in a particular field in a particular area. They are also looking for testimonials and looking for the experience of a lawyer.

All in all, it makes perfect sense for users facing these challenges to turn to Dynamic Lawyers as a way of finding the right lawyer for the right price.  Making a post is free and anonymous, posts remain on the website for up to 45 days, and users have the opportunity to receive information and multiple quotes from local lawyers specializing in the area of law requested.  Comparing answers and then following up with the lawyer of your choice is just plain smart – particularly in a field where it is hard to compare one service provider from the next.  All in all, a very good deal…

So now that you have found the right avenue to find a lawyer in a convenient and cost-effective manner: what next?  Well, let’s talk about legal fees.  Many lawyers will charge you a fixed fee for the first consultation.  At this meeting, they’ll ask you questions about yourself and your situation.  The lawyer is trying to understand the legal issues so that he can offer you some type of recommendation on how to proceed.  If the meeting goes well, you may end up signing the lawyer’s retainer agreement, which stipulates the services that are going to be offered and the fees that are going to be charged.  The fees are typically hourly fees ranging from $200 to upwards of $1000 / hour, depending on the size of the law firm, where it’s located (and it’s physical appearance and amenities), and the particular lawyer’s expertise and reputation.

At the first meeting with the lawyer, you should ask some basic questions related to:

1. What services will the lawyer specifically provide;
2. Billing, costs and budget;
3. Time line;
4. Communication (e.g. by phone, e-mail, etc. and how regularly);
5. Past Experience in a particular field;
6. Strategy;
7. Style (e.g. aggressive trial lawyer or alternative dispute resolution lawyer); and
8. Terminating the retainer (e.g. failure to pay, failure to act, breakdown in the relationship, loss of confidence, etc.).

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Toronto law firms can help answer your legal questions, facilitate your transaction (e.g. business, real estate, wills and estates, family, etc.) or even represent you in court.  To find a Toronto lawyer or law firm, go to Dynamic Lawyers and make a post.  It’s free and anonymous and Toronto lawyers and law firms will respond to you with information and quotes for you to compare.

Here are some of the different types of legal services that Toronto law firms can offer:

• Accidents and Injuries: Involved in an accident where you suffered personal injury?
• Business: Need corporate or commercial agreements? Need to have a lawyer help you do a transaction?
• Charities and Not-For-Profit: Need to establish a Not-For-Profit corporation or obtain charity status?
• Civil Litigation – Higher Court: Have a serious legal claim that needs to be litigated in the Superior Court, Divisional Court, etc.?
• Civil Litigation – Small Claims Court: Have a legal claim (e.g. breach of contract, negligence, etc.) for less than $10,000?
• Constitutional / Human Rights and Freedoms: Challenging a law or government action / inaction?
  Criminal: Charged with a criminal offence? Appealing a conviction?
• Employment and Labour: Need an employment agreement? Unjustly terminated? Need to know your rights?
• Family: Going through a separation or divorce? Fighting to get custody or access? Dealing with spousal and child support?
• Government: Need to lobby the government? Need to resolve a dispute with a government agency?
• Highway Traffic Tickets: Charged with speeding or DUI? Need to fight traffic tickets?
• Immigration: Need to immigrate to Canada? Fighting against deportation?
• Insurance: Having difficulties with your Insurance company?.
• Intellectual Property: Need to register a copyright or trademark? Need help with a patent?
• Landlord and Tenant: Need a resolve a dispute? Need to know your rights?.
• Notary Public / Commissioner: Need to notarize or commission your documents?
• Real Estate: Need someone to facilitate your residential or commercial purchase, sale, or lease?
• Tax: Need help structuring your tax affairs? Need help resolving tax disputes with the Canada Revenue Agency?
• Wills, Estates and Trusts: Need a will? Need to update your will? Find out why having an up-to-date will is a must.

Try to consult with a couple of Toronto law firms and Toronto attorneys until you’re comfortable with whom you’re speaking with.  Toronto law firms differ in size, location, expertise, and reputation.  Go to Dynamic Lawyers and save time and money finding the right Toronto law firms and Toronto attorneys who specialize in the legal area you require!

written by admin \\ tags: breach of contract, charity status, Civil Litigation, commercial agreements, company intellectual property, criminal offence, divisional court, employment agreement, government action, government need, human rights and freedoms, landlord and tenant, law firms toronto law office toronto, lawyers in Toronto, legal claim, legal toronto, notarize, small claims court, support government, toronto law firms, toronto lawyer, toronto legal services, Wills and Estates

Toronto law firms can help answer your legal questions, facilitate your transaction (e.g. business, real estate, wills and estates, family, etc.) or even represent you in court.  To find a Toronto lawyer or law firm, go to Dynamic Lawyers and make a post.  It’s free and anonymous and Toronto lawyers and law firms will respond to you with information and quotes for you to compare.

Here are some of the different types of law that Toronto law firms can assist you in:

• Accidents and Injuries: Involved in an accident where you suffered personal injury?
• Business: Need corporate or commercial agreements? Need to have a lawyer help you do a transaction?
• Charities and Not-For-Profit: Need to establish a Not-For-Profit corporation or obtain charity status?
• Civil Litigation – Higher Court: Have a serious legal claim that needs to be litigated in the Superior Court, Divisional Court, etc.?
• Civil Litigation – Small Claims Court: Have a legal claim (e.g. breach of contract, negligence, etc.) for less than $10,000?
• Constitutional / Human Rights and Freedoms: Challenging a law or government action / inaction?
  Criminal: Charged with a criminal offence? Appealing a conviction?
• Employment and Labour: Need an employment agreement? Unjustly terminated? Need to know your rights?
• Family: Going through a separation or divorce? Fighting to get custody or access? Dealing with spousal and child support?
• Government: Need to lobby the government? Need to resolve a dispute with a government agency?
• Highway Traffic Tickets: Charged with speeding or DUI? Need to fight traffic tickets?
• Immigration: Need to immigrate to Canada? Fighting against deportation?
• Insurance: Having difficulties with your Insurance company?.
• Intellectual Property: Need to register a copyright or trademark? Need help with a patent?
• Landlord and Tenant: Need a resolve a dispute? Need to know your rights?.
• Notary Public / Commissioner: Need to notarize or commission your documents?
• Real Estate: Need someone to facilitate your residential or commercial purchase, sale, or lease?
• Tax: Need help structuring your tax affairs? Need help resolving tax disputes with the Canada Revenue Agency?
• Wills, Estates and Trusts: Need a will? Need to update your will? Find out why having an up-to-date will is a must.

Try to consult with a couple of Toronto law firms and Toronto attorneys until you’re comfortable with whom you’re speaking with.  Toronto law firms differ in size, location, expertise, and reputation.  Go to Dynamic Lawyers and save time and money finding the right Toronto law firms and Toronto attorneys who specialize in the legal area you require!

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