Articles 2023

At the October Brown Bag Lunch meeting, OBA Trusts and Estates Law Section members discussed a variety of interesting topics, including the Law Society of Ontario’s recent decision to terminate the Certified Specialist Program, holograph Wills, partial intestacies, and situations where most or all assets pass outside of the estate leaving insufficient assets to satisfy debts.

In a recent development, it is now possible to request to receive updated versions of the Estates Procedure Manual automatically. We encourage all estate practitioners to put themselves on this list, in order to ensure that they have the most up-to-date version of the Estates Procedure Manual.

Estate law and family law share a number of common features. The focus of many files in both areas of law is resolving the dispute and allowing clients to move on with their lives (and, where possible, preserving a relationship with the other parties to the dispute). With so much overlap, it may be helpful for estate and family lawyers, respectively, to share perspectives and experiences, and hear of alternative strategies for resolving family disputes.

When a testator dies without providing adequate support for any of his or her dependants, a dependant may bring an application for support under the Succession Law Reform Act. There is a limitation period for bringing such an application. As discussed by Kim Gale and Palak Mahajan, to avoid certain negative consequences, estate trustees would be well-advised not to distribute the estate assets until that time is up.

Members of the OBA Trusts and Estates Section met in September for the first Brown Bag Lunch of the 2022-2023 term after taking a break for July and August. Attendees eagerly jumped back into the discussion, raising questions about joint accounts, the Calmusky decision, and incorrect information received from the Ministry of Finance.

RESPs are a great tool to save money for a child’s post-secondary education. But who actually owns the funds in an RESP? The recent decision of Labatte v Labatte considered the matter of an RESP created by spouses who later divorced, and the question of when an RESP might be held in trust.

The last Brown Bag Lunch of 2021-2022 was held in June. OBA members gathered, as usual, to discuss interesting practice questions and to share their experiences. Topics discussed in June included issues relating to the storage of original Wills and what constitutes a first dealing.

This past term, the OBA Trusts and Estates Section created its first Equity, Diversity and Inclusion Subcommittee. The Subcommittee first worked on identifying and developing its vision and mission, and then went on to propose a number of strategies to further that vision and mission. The EDI Subcommittee looks forward to the next steps in advancing equity, diversity and inclusion initiatives at the OBA.

Estate planning can be particularly difficult for parents of special needs children. Such children may need to be treated differently in the estate planning context, perhaps by receiving an unequal distribution from the parents’ estates to ensure they are provided for sufficiently. This raises an important question: will an unequal distribution for this purpose lead to a Will challenge by other family members?

The Brown Bag Lunch is a great forum to raise interesting and challenging practice questions among Trusts and Estates colleagues. In May, OBA members met for another monthly Brown Bag Lunch. Topics discussed included a recent decision about pour-over Wills, practical issues in obtaining an ancillary grant of probate, and more.