Last fall the Ontario government took steps to simplify the province’s estate laws. The changes took effect as of January 1, 2022, and are aimed to make the probate process more accessible. The good news:  the number of forms has been reduced from 58 to 23.  The forms are easier to understand and complete alongside a new explanatory notice which explains to the beneficiary the reason they are receiving the application, their right to object and potential outcomes. Although helpful, the complexities of administering an estate and the fiduciary responsibilities have not been simplified ..read more

A condominium is a type of legal ownership where the property is divided between privately owned units and common elements. Each unit owner owns the unit as well as a proportion of common elements, which includes such things as hallways, lobbies and elevators and there are also “exclusive use common property elements,” such as balconies, parking spaces, and storage lockers, which are outside the unit’s boundaries but are for the exclusive use of the unit owner. Required Documents When buying a condo, any offer should be conditional on your lawyer reviewing the Status Certificate. This package ..read more

Quite often we hear about someone’s Will being challenged.  The most common grounds being: proper execution; knowledge and approval of the contents of the Will; fraud; lack of testamentary capacity; and undue influence and suspicious circumstances. A person who wishes to challenge a Will as being invalid must file a Notice of Objection with the court which sets out the reasons for why they believe the Will is not valid. The party challenging the Will (the “Objector”) has the burden to show there are “suspicious circumstances” surrounding the execution of the Will.  If those suspici ..read more

Sometimes estate disputes are inevitable given the family dynamics for the challenge to be made. A variety of mechanisms exist to resolve disputes arising over testamentary documents, such as informal settlement, mediation, and court. Informal Settlement   At any time, the matter can be resolved informally. Legal counsel may discuss the case and advise the parties to settle. Sometimes settlement comes early on in the matter; at other times it is only after documents are exchanged and significant disclosure has been made and the parties are able to assess the case. Once lawyers are re ..read more

The role, powers and obligations of an attorney for property are set out by statute (Substitute Decisions Act, 1992) as interpreted by the courts (called common law). Purpose If a person is unable to look after or may need help with his or her own affairs such as banking, paying bills, buying necessary items, or dealing with his or her assets or day-to-day finances, an attorney for property steps into the shoes of that person to make substitute financial decisions and manage the assets for the person’s behalf or benefit. Passing control of the management and decision making authority to an att ..read more

The Tax Free Savings Account (TFSA) encourages Canadians to save money to meet financial goals and lifetime saving needs. No tax deduction is available for the contributions made, but all money withdrawn is tax-free and all investment income (e.g., interest, dividends, capital gains) can be generated without attracting tax or affecting the eligibility for federal income-tested benefits and credits, such as Old Age Security, the Guaranteed Income Supplement, and the Canada Child Tax Benefit. TFSAs can be issued by banks, insurance companies, credit unions, and trust companies. Who Can Contribut ..read more

Appointing an estate trustee who does not reside in Canada has several negative implications.  A non-resident estate trustee is required to post a bond (which is costly and adds delay), and he or she may not be eligible to make certain financial investments available to Canadian residents (e.g., stocks, bonds, Canada Savings Bonds). Even if a Will states the contrary, Canada Revenue Agency may view that the estate resides where the estate trustee resides. The residence of the estate trustee could determine the residency of the estate for income tax purposes, resulting in the complication ..read more

More Canadians are incorporating pre-paid funeral arrangements into their estate plan. Also known as an Eligible Funeral Arrangements (EFA). Where Can I Buy a Pre-paid Funeral Contract? A pre-paid funeral contract may be purchased from any person licensed to provide funeral or cemetery services, including a funeral director or owner or operator of a licensed cemetery, mausoleum, crematorium or columbarium. How are Funeral Services and Cemetery Services Distinguished for the Plan? “Funeral services” mean property and services other than cemetery services such as, services or supplies provided b ..read more

An implied trust is created without a clear statement of trust by a settlor and rather from an intention presumed or imposed by the courts when a certain set of facts occur. Resulting Trusts A resulting trust occurs where the court presumes a trust was intended. A resulting trust occurs from the legal presumption of an intent to create a trust by the person who buys real estate or holds personal property (e.g., money) in the name of or for another; the holder of the property is deemed to be a trustee provided he or she is a stranger or not a relative to the purchaser. If there is a close famil ..read more

One important reason to make a Will is to appoint a guardian and custodian for your minor children, in case you pass away before they reach the age of majority (18 in Ontario). What Can You Do in Your Will? Many people assume that when you name a guardian and custodian in your Will, that is the end of the story. However, this is not the case. Under the Children’s Law Reform Act, a person can make a Will which appoints a guardian and custodian of minor children.  You may also appoint an alternate guardian in the event that the one appointed cannot act. However, the appointment is considere ..read more