Articles 2021

In October, Trusts and Estates Law Section members gathered for the monthly Brown Bag Lunch. As always, participants raised interesting questions and topics for discussion, including missing beneficiaries, and how to designate a "successor owner" of an insurance policy. BBLers also discussed the upcoming changes to the Rules of Civil Procedure and the new probate forms.

Effective January 1, 2022, significant changes to the Succession Law Reform Act, the Rules of Civil Procedure, and the forms for probate applications are coming into force. In this article, Krystyne Rusek reviews a number of the procedural changes that will apply immediately in the New Year. Given that there is no transitional period during which these changes will be phased in, it is important to be aware of, and understand the changes to avoid delays and rejected applications.

In a Will challenge, it is essential to understand which party bears the burden of proof on which issues, and in what circumstances. It is equally important to understand what kind of evidence will be needed, and the sources of evidence. In part two of this series of articles, Charlotte Hobson shares some information in this regard as imparted at the second session of a recent CPD program dealing with Will challenges.

Will challenge claims arise frequently, and lawyers who practice in the area of estates are certain to encounter them. It is important to have the tools and knowledge necessary to approach Will challenges with confidence. A recent CPD program series addressed various aspects of Will challenges and provided a comprehensive guide. In this first of a six-part series, one attendee shares a summary of the first session of the program, which deals with preparing the application.

A holograph Will may seem like a good alternative to a formally executed Will, particularly in the time of COVID-19 lockdowns, when clients and counsel were at times unable to meet in person. The recent decision in Re: Lacroix Estate serves as a reminder that holograph Wills must still meet certain requirements in order to be valid, and highlights the importance of ensuring that all testamentary documents comply with the statutory writing and signing formalities.

BBLers kicked off the new term with an interesting September Brown Bag Lunch. Topics included codicils, and some unique and creative ways of dealing with vendor take back mortgages in estate planning, and with unclaimed tax benefits in an estate administration.

At the June Brown Bag Lunch meeting, participants discussed current and relevant topics including the ability to obtain sealing orders after the SCC’s decision in the Sherman Estate matter, Wills dealing with cryptocurrency, and the principal residence exemption for residences owned by a testamentary spousal trust.

Two recent Superior Court judges depart from the court's ruling in Calmusky that a beneficiary designation is subject to the presumption of resulting trust.

The "deceptively simple" question of whether a spouse had capacity to marry is one that lies at the intersection of family, estates and elder law. This case comment reconsiders the important decision of Tanti v. Tanti, on capacity to marry, in light of the reforms to the SLRA by the Accelerating Access to Justice Act. As the author explains, even after the SLRA amendments come into force on January 1, 2022, marriage has the potential to dramatically change the distribution of a spouse's estate.

Gain insight into issues facing your fellow estates & trusts practitioners through this summary of the May meeting of the BBL group. Topics included the applicability of land transfer tax to various forms of transfers from an estate to a beneficiary, the changes effected by the Accelerating Access to Justice Act, 2021, and how to deal with various unusual testator requests, including for the destruction of estate property.