Experienced Estates Litigators
Guiding You Forward
We will help you strategize, marshal evidence, and be prepared for success in the event of a hearing.
Left unmanaged,
estate litigation can bankrupt an estate and
its beneficiaries.
As experienced estates litigation counsel, we fight to avoid this outcome by manoeuvring the parties away from an expensive standoff toward a resolution of the real issues. Where negotiations fail, our experienced team can take the matter to a hearing, trial or appeal.
A last will and testament is an individual’s last chance to change the world. Yet, Ontario courts have the power to void a will or codicil (an amendment to a will) if it does not reflect the true wishes of the person who made it. A will may be declared void if it was not properly signed and witnessed. It may be declared void if the person signing did not have full knowledge and approval of all the contents, or if the person lacked the necessary mental capacity. A will may also be set declared void if it was the result of undue influence (or coercion) by someone else. Our lawyers regularly launch and defend will challenges. We have taken will challenges to every stage of litigation, including trial. We understand the many intricate layers of an estate battle – from the complex dynamics of blended or estranged families, to the effects of dementia, drugs or Alzheimer’s disease, to the telltale signs of fraud, coercion and forgery. We also recognize that many of our clients are coping with grief while fighting conflicts that have been brewing for years or even decades.
The last will and testament does not always have the last word. Legislation in Ontario allows family members and other people to bring claims against estates for financial support. For example, a surviving spouse may elect to receive an equalization payment under the Family Law Act. Similarly, spouses, common law partners, children and step-children may be entitled to dependant’s support under the Succession Law Reform Act. If you have been disinherited by a parent, step-parent, spouse or common law partner, or if you believe that you have not received an adequate share of an estate, you may be eligible to bring such a claim. Our lawyers have extensive experience advancing claims on behalf of these family members, and in responding to these types of claims.
Executors and trustees have tremendous authority, but they do not always deserve it. A beneficiary or other person with an interest in an estate or trust may seek to have an executor or trustee removed by court order. The court must be satisfied that the executor or trustee’s removal is necessary to protect the interests of the beneficiaries. The grounds for removal include, but are not limited to, misconduct, mismanagement of assets, undue delays, incapacity, and conflict of interest. Our lawyers often represent parties in applications to remove or appoint executors and trustees.
In estate litigation, the parties often cannot agree on who should manage the estate while the fight is ongoing. In these situations, parties may wish to ask the court for an order appointing an estate trustee during litigation (ETDL) to ascertain the assets and liabilities of the estate, to sell the assets, to file the tax returns, and to keep the net proceeds invested until the litigation is over. Our lawyers regularly represent parties in applications for the appointment of a neutral ETDL.
Disputes can arise over family members who have lost the mental capacity to make decisions. In these circumstances, a close friend or family member might apply to become guardian or co-guardian over the incapable person. Guardianship applications usually proceed unopposed, but sometimes they are fraught with tensions as different parties fight to gain control over an incapable person’s care, not to mention his or her assets. We regularly represent individuals in guardianship proceedings, which sometimes dovetail with power of attorney disputes.
People often choose to hold assets for others, unofficially and without paperwork. Sometimes the idea is to protect the asset from creditors, hide it from a spouse, avoid taxes, simplify business accounting, qualify for a better mortgage, take advantage of a first-time home buyer incentive, follow cultural norms, or just make someone happy. But what happens when the person holding the asset (the “legal owner”) claims to be the true owner (what lawyers call the “beneficial owner”)? The beneficial owner can bring a court proceeding for a declaration that the asset is being held in a trust. Our lawyers have experience litigating on both sides of litigating complex unjust enrichment claims about money, real estate, the value of services, investment gains, rent and other ill-gotten benefits.
Restitution is a complex area of law designed to restore property to its rightful owners. Lawyers use special terms like unjust enrichment, disgorgement, quantum meruit, proprietary estoppel or constructive trust, but the words matter less than the results. A successful restitutionary claim could give you money for caregiving or property management services, a share of the business you helped build, a home purchased in someone else’s name or an asset that was promised to you. Our lawyers enjoy arguing these cases, either for or against, because the facts and law are always multifaceted.
An executor, estate trustee and trustee are all fiduciaries. A fiduciary has a duty to act honestly and in good faith and must make decisions in keeping with the law. Fiduciaries have duties to properly account to the beneficiaries, to hold personal assets separate from those in the estate or trust, to exercise their discretion prudently, and to refrain from benefitting personally from their position of authority. Our lawyers have experience representing those alleging or defending a breach of trust claim. Whether you are an executor, estate trustee, trustee or beneficiary, our lawyers can help you navigate these serious and potentially complex claims.
Our elders ought to be protected, but they are not. Social isolation, diminishing health and cognitive decline create a perfect storm for financial, physical, emotional and even sexual abuse. Some elders are so brainwashed that they defend their abusers in open court. Some abusers are so brazen that they hurl false allegations of elder abuse against those who oppose them. Our lawyers work with doctors, social workers, psychiatrists and other professionals to unmask abuse and undo whatever harm that can be undone.
Mediation is a way to resolve legal disputes without going to trial. The parties attend with their lawyers in separate rooms or virtual rooms at a neutral location. Over the course of a day (or days), an impartial mediator meets with each side multiple times, carrying offers and counteroffers, in an effort to broker settlement. Our lawyers understand that mediation involves both the science of risk management and the art of negotiation. No client should proceed to trial without considering settlement; but no client should enter a settlement without considering a trial.
Trials are a better way to achieve justice than pistols at dawn … but still far from perfect. At trial, an impartial judge, who knows nothing about the personalities of the people involved, the family dynamics or whom to trust, is tasked with deciding the case. Trials are about proof, not truth – and unlike in our favourite courtroom dramas, proof needs to be slowly, painstakingly extracted, explained and catalogued. When done properly, trials are a culmination of months of work by lawyers researching the latest case law, planning meticulous cross-examinations and prepping their clients, among other tasks. A massive undertaking, trials are also a huge risk. One bad day in the witness box can spell catastrophe for a client, and the loser at trial is often ordered to pay the legal costs of the other side. If trial is where you’re headed, hire lawyers you can trust.
An appeal is not a second kick at the can. While some parties vow that they will “go three rounds” or “fight this one to the top,” these expressions stem from a misconception. An appeal gives a disappointed litigant the privilege of having a higher court review the written reasons of the lower-court judge for major errors of law and/or fact. The judges hearing the appeal will not see the witnesses testify; at most they will read the trial transcripts. This means, among other things, that your written materials on an appeal need to be excellent. If you need to appeal, hire a lawyer immediately because there are extremely tight deadlines.
A last will and testament is an individual’s last chance to change the world. Yet, Ontario courts have the power to void a will or codicil (an amendment to a will) if it does not reflect the true wishes of the person who made it. A will may be declared void if it was not properly signed and witnessed. It may be declared void if the person signing did not have full knowledge and approval of all the contents, or if the person lacked the necessary mental capacity. A will may also be set declared void if it was the result of undue influence (or coercion) by someone else. Our lawyers regularly launch and defend will challenges. We have taken will challenges to every stage of litigation, including trial. We understand the many intricate layers of an estate battle – from the complex dynamics of blended or estranged families, to the effects of dementia, drugs or Alzheimer’s disease, to the telltale signs of fraud, coercion and forgery. We also recognize that many of our clients are coping with grief while fighting conflicts that have been brewing for years or even decades.
The last will and testament does not always have the last word. Legislation in Ontario allows family members and other people to bring claims against estates for financial support. For example, a surviving spouse may elect to receive an equalization payment under the Family Law Act. Similarly, spouses, common law partners, children and step-children may be entitled to dependant’s support under the Succession Law Reform Act. If you have been disinherited by a parent, step-parent, spouse or common law partner, or if you believe that you have not received an adequate share of an estate, you may be eligible to bring such a claim. Our lawyers have extensive experience advancing claims on behalf of these family members, and in responding to these types of claims.
Executors and trustees have tremendous authority, but they do not always deserve it. A beneficiary or other person with an interest in an estate or trust may seek to have an executor or trustee removed by court order. The court must be satisfied that the executor or trustee’s removal is necessary to protect the interests of the beneficiaries. The grounds for removal include, but are not limited to, misconduct, mismanagement of assets, undue delays, incapacity, and conflict of interest. Our lawyers often represent parties in applications to remove or appoint executors and trustees.
In estate litigation, the parties often cannot agree on who should manage the estate while the fight is ongoing. In these situations, parties may wish to ask the court for an order appointing an estate trustee during litigation (ETDL) to ascertain the assets and liabilities of the estate, to sell the assets, to file the tax returns, and to keep the net proceeds invested until the litigation is over. Our lawyers regularly represent parties in applications for the appointment of a neutral ETDL.
Disputes can arise over family members who have lost the mental capacity to make decisions. In these circumstances, a close friend or family member might apply to become guardian or co-guardian over the incapable person. Guardianship applications usually proceed unopposed, but sometimes they are fraught with tensions as different parties fight to gain control over an incapable person’s care, not to mention his or her assets. We regularly represent individuals in guardianship proceedings, which sometimes dovetail with power of attorney disputes.
People often choose to hold assets for others, unofficially and without paperwork. Sometimes the idea is to protect the asset from creditors, hide it from a spouse, avoid taxes, simplify business accounting, qualify for a better mortgage, take advantage of a first-time home buyer incentive, follow cultural norms, or just make someone happy. But what happens when the person holding the asset (the “legal owner”) claims to be the true owner (what lawyers call the “beneficial owner”)? The beneficial owner can bring a court proceeding for a declaration that the asset is being held in a trust. Our lawyers have experience litigating on both sides of litigating complex unjust enrichment claims about money, real estate, the value of services, investment gains, rent and other ill-gotten benefits.
Restitution is a complex area of law designed to restore property to its rightful owners. Lawyers use special terms like unjust enrichment, disgorgement, quantum meruit, proprietary estoppel or constructive trust, but the words matter less than the results. A successful restitutionary claim could give you money for caregiving or property management services, a share of the business you helped build, a home purchased in someone else’s name or an asset that was promised to you. Our lawyers enjoy arguing these cases, either for or against, because the facts and law are always multifaceted.
An executor, estate trustee and trustee are all fiduciaries. A fiduciary has a duty to act honestly and in good faith and must make decisions in keeping with the law. Fiduciaries have duties to properly account to the beneficiaries, to hold personal assets separate from those in the estate or trust, to exercise their discretion prudently, and to refrain from benefitting personally from their position of authority. Our lawyers have experience representing those alleging or defending a breach of trust claim. Whether you are an executor, estate trustee, trustee or beneficiary, our lawyers can help you navigate these serious and potentially complex claims.
Our elders ought to be protected, but they are not. Social isolation, diminishing health and cognitive decline create a perfect storm for financial, physical, emotional and even sexual abuse. Some elders are so brainwashed that they defend their abusers in open court. Some abusers are so brazen that they hurl false allegations of elder abuse against those who oppose them. Our lawyers work with doctors, social workers, psychiatrists and other professionals to unmask abuse and undo whatever harm that can be undone.
Mediation is a way to resolve legal disputes without going to trial. The parties attend with their lawyers in separate rooms or virtual rooms at a neutral location. Over the course of a day (or days), an impartial mediator meets with each side multiple times, carrying offers and counteroffers, in an effort to broker settlement. Our lawyers understand that mediation involves both the science of risk management and the art of negotiation. No client should proceed to trial without considering settlement; but no client should enter a settlement without considering a trial.
Trials are a better way to achieve justice than pistols at dawn … but still far from perfect. At trial, an impartial judge, who knows nothing about the personalities of the people involved, the family dynamics or whom to trust, is tasked with deciding the case. Trials are about proof, not truth – and unlike in our favourite courtroom dramas, proof needs to be slowly, painstakingly extracted, explained and catalogued. When done properly, trials are a culmination of months of work by lawyers researching the latest case law, planning meticulous cross-examinations and prepping their clients, among other tasks. A massive undertaking, trials are also a huge risk. One bad day in the witness box can spell catastrophe for a client, and the loser at trial is often ordered to pay the legal costs of the other side. If trial is where you’re headed, hire lawyers you can trust.
An appeal is not a second kick at the can. While some parties vow that they will “go three rounds” or “fight this one to the top,” these expressions stem from a misconception. An appeal gives a disappointed litigant the privilege of having a higher court review the written reasons of the lower-court judge for major errors of law and/or fact. The judges hearing the appeal will not see the witnesses testify; at most they will read the trial transcripts. This means, among other things, that your written materials on an appeal need to be excellent. If you need to appeal, hire a lawyer immediately because there are extremely tight deadlines.
Litigation
is never pretty.
Whether you are in a conflict with a family member, a business associate, or a former employee, you can expect to hear statements that you categorically deny. Our experienced team can help you to strategize, marshal your evidence, and be successful at the eventual hearing or trial.
Contact us.
Our litigators offer practical advice along with winning strategy that address our clients’ unique interests.
Let us know how we can help.
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