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Changes in Estates and Trusts

The Honourable Susan E. Greer was a judge in Toronto for over 23 years. Following her recent retirement, Her Honour published an article in the Advocates Daily in which she comments on changes she experienced over the years on the Bench.

Her comments provide an interesting insight into the changes that have taken place in the legal profession, some of which are as follows:

Sibling Rivalry

The courts are now increasingly more involved in sibling rivalry type cases. Some examples identified by her Honour include cases where siblings argue over who in the family should be appointed as power of attorney or cases involving joint accounts.

Pre-Death Will Challenges

The courts are now dealing with “pre-death” will challenge cases in which children challenge the terms of a parent’s will before the parent is deceased. In this regard her Honour referred to a French decision in which a daughter was cut out of her 92 year old mother’s will. The mother left her substantial estate to a man she had befriended. The daughter was able to successful invalidate the will on the basis of fraud, while the mother was still alive.

Will Challenges

There are generally more will challenges now, involving cases where there are wills that were properly prepared by lawyers. This trend is referred to by her Honour as the “greed factor.”

Costs

Courts in estates no longer order that all costs be paid out of an estate. Rather, unsuccessful litigants now will be required to pay their own costs, and may also be responsible for the costs of the successful party.

Jason