Articles 2020

On those occasions where a bond is prima facie required, and the estate trustee cannot obtain an order dispensing with the requirement, how does one proceed? What exactly is a bond, how is it obtained, what does it cost, and how long must it be maintained? This article answers those basic questions and more, giving estates practitioners the necessary information to guide clients through the process.

As of 2021, trust reporting requirements will increase for non-resident trusts and certain Canadian-resident trusts. Find out how to meet the requirements and set up trusts for success in this new reporting regime of heightened disclosure, accountability and transparency obligations.

This summary of the latest Estates List Users Committee (“ELUC”) meeting provides guidance on various proceedings during the court closure, including the preferred practice for submitting probate applications to the Toronto court, how to deal with unopposed passing of accounts, and the court's position on virtually commissioned affidavits.

The May meeting of the Brown Bag Lunchers continued to focus on pandemic-related topics, including concerns regarding remotely executed Wills, best practices for execution, and practical difficulties dealing with banks. Participants also considered the recent and surprising case of Calmusky v. Calmusky, in which the court applied Pecore principles to a RIF beneficiary designation.

At the April 2020 Brown Bag Lunch meeting, attendees discussed recent case law on the possible "carry over" of beneficiary designations when one investment is automatically converted to another, the ongoing state of emergency, and their practices and preferred technology for remote execution of Wills, among other topics.

Those who draft complex trust instruments need to keep in mind various clauses that can modify a trustee’s duty, offering protection where liability would otherwise attach. This blog discusses a recent Hong Kong case and its upholding of an anti-Bartlett clause, used to to exclude a trustee's duty to supervise or intervene in the management of a company in which the trust holds shares.

A summary of some useful practice tips covered at the OBA Program Kissing Cousins Reunited: Focus On Family Law Issues In Estates Planning, including how to manage joint retainers - and when to avoid them - for spouses with blended families.

In the face of Covid-19, the OBA’s Brown Bag Lunches have continued via Zoom, and become an even more important forum for practitioners. At the March BBL meeting, members grappled with new challenges of court closures and practicing in the era of social distancing, plus more enduring issues such as the relationship between capacity to consent to MAID and testamentary capacity, and an attorney for property or personal care’s ability to make substitute decisions about reproductive material.

In Lawen Estate, the Nova Scotia Supreme Court held that testamentary autonomy is protected by s. 7 of the Charter, and the provisions of the Testators’ Family Maintenance Act which allow a judge to grant dependant's support to independent adult children were not saved by s. 1. This article considers what the court's ruling might mean for dependant's support legislation across Canada, as well as what effect it might have on the court's approach to public policy limits of testamentary freedom.

While social distancing remains in effect, everyday elements of our legal practice have become the most complicated. This article summarizes the guidelines available for virtual commissioning of affidavits and sets out a step-by-step process for putting virtual commissioning into practice, including the pros and cons of different methods, some stumbling blocks, and how to mitigate the associated risks.