Articles

What is ageism, and are we as estates practitioners guilty of it? This articles considers some common practices of estates lawyers that may be driven by unconscious bias against older people, and offers suggestions on how to adjust our practices to combat that bias.

At the January meeting of the Estates List Users Committee, topics discussed included wait times for probate applications and short scheduling appearances, and current practices for filing and putting materials before a judge.

The Ontario Bar Association’s Neutral Diversity Committee has crafted a survey to collect information about OBA member experiences and views in relation to mediator and arbitrator diversity. OBA members engaged in litigation, mediation and arbitration are invited to share their views.

The Toronto Estates Court and its Estates List Users Committee (ELUC) have approved the publication of full Minutes (rather than summaries) of all ELUC meetings going forward. These December 2020 Minutes provide updates on probate wait times, issuing applications, booking hearing dates, and best practices for filing large records, among other matters.

The Court's decision in this case turns on the somewhat puzzling distinction between a life interest and a license to use a property - a distinction that courts have not consistently applied, but which in Barsoski resulted in the Deceased's intended gift to the Respondent failing entirely. Despite the lack of clarity in the law regarding licenses to use vs. life interests, drafting lawyers can take certain clear steps, enumerated here, to make sure the testator's wishes are upheld.

At the February BBL meeting, participants discussed the details of the Small Estates Process, to come into effect April 1, and the important differences from the regular application procedure. This article's summary of that discussion is helpful reading for anyone planning to use the new process. Other topics of discussion included billing practices for estate administration work, and e-certificates of appointment. The next BBL is March 16 - we hope to see you there!

The first Brown Bag Lunch of 2021 kicked off the year with discussion of Barsoski v. Wesley, and various considerations related to the increasingly virtual nature of our practice: e-filing of probate applications, electronic Certificates of Appointment, and virtual witnessing.

The Public Guardian and Trustee (PGT) liaison committee of the Trusts and Estates section is inviting comments on the PGT’s initiative to modernize their online Power of Attorney information. Those interested in commenting should review the PGT summary of the initiative and request for feedback, provided here, and send any submissions by email to Alex Procope (aprocope@pbplawyers.com) by March 26, 2021.

It's not unusual for an executor to find themselves faced with an insolvent estate. Given insolvent estates are rarely the subject of litigation, however, there is a dearth of case law to help the executor determine whom to pay first. This article provides much needed guidance on that topic, in light of section 50(1) of the Trustee Act, and case law on the priority of debts to the federal and provincial Crowns.

The final BBL meeting of the year focussed on things to come, including O. Reg. 690/20, which will change the process of applying for a Certificate of Appointment of Estate Trustee, and electronic filing of those applications.