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Wills and Estates Litigation Archives

Multiple Wills in Ontario: Re Milne Revisited

The Divisional Court recently allowed the appeal in the matter of Milne Estate (Re), 2019 ONSC 579, providing a sigh of relief for estate planning lawyers across the Province.The Milne case deals with the validity of multiple wills and the ability of a Secondary Will to give discretion to the trustees to define which assets would form part of it as well as with the question of whether a will is a trust. The lower court's decision in Milne Estate (Re), 2018 ONSC 4174 raised many concerns in Ontario regarding the practice of creating multiple wills. In this post, we will take a brief look at Justice Dunphy's decision, the recent Divisional Court decision overturning Justice Dunphy's ruling and the impact this will have on estate planning in Ontario.

Resealing of Foreign Orders Appointing Guardians

This blog was written in collaboration with David Morgan Smith at Hull and Hull LLP. In some cases, an incapable person residing outside of Canada has assets in Canada. Can a guardian appointed outside of Canada have access to the incapable's Canadian assets? By extension, would a Guardianship Order made outside of Canada be recognized in Ontario?

What happens when people die without wills in place?

Despite many people claiming to be aware of the importance of proper estate planning, nearly half of Canadian adults report not having estate planning documents in place. Ontario adults who die without the appropriate wills and other important documents lined up will have their assets and liabilities disseminated according to provincial law. This lack of planning is known to cause tension within families, so it is a good idea for people to consider the implications of procrastinating on or neglecting this important task.There are many reasons people may not have wills drawn up. Some may believe they do not need one until they are older, sicker or have more assets to disseminate. Others may be avoiding uncomfortable conversations with family or procrastinating on the personal effort it takes to consider one's own death. Whatever the reason, putting this task off can be a mistake in many cases.

How should wills address digital assets like cryptocurrency?

Passing along wealth when everything is either available in cash or held in a bank is straightforward enough. While solid estate planning and proper communication with financial institutions has always been a good idea, for a long time the documentation needed for most was limited to wills, real estate deeds and stock certificates. However, an increasing number of Ontario residents are needing to consider digital assets such as cryptocurrency and online businesses when drafting estate plans.In some ways, planning the transition of digital assets is the same as any traditionally held asset. Like anything, the planner should leave a list of assets and how to access them. Digital assets may need some additional explanation, especially when dealing with a less tech-savvy executor, so it's a good idea to go into as much detail as possible within estate plans.

How to manage estates to protect intergenerational wealth

What happens when people leave inheritance to their children? Often, the assets are spent and wealth only makes it to the third generation in 10 percent of families. While it is a challenge, there are some steps Ontario families can take when planning their estates to encourage wealth to continue through to more generations of children and grandchildren.The first tip for Ontario estate planners is to focus on long-term strategies. For example, planners should take a big-picture look at all assets and beneficiaries to plan a strategy before executing a will. Working with trusted professionals, such as financial and an estate lawyer, can help reveal some of the most important aspects of estate planning.

The dynamics of contesting a will

Wills are an important part of the estate planning equation, and they are intended to allow for a smooth transition as one's final wishes are preserved. However, there are times when you may feel that some of the provisions in a will are not legally justified - so much so, that you may actually want to contest or challenge the will.Communication is an important part of estate planning and the creation of a will, but many individuals take the process for granted because of how well they may assume they know their loved ones. So, often the first time you see what's in a loved one's will is after his or her passing. The hurt you feel may just add to your grief over losing someone you love, and you might start questioning several aspects related to the creation of the will.

How does deemed disposition tax apply to estates in Ontario?

In Ontario and the rest of Canada, many people believe that there is no estate tax to be paid upon their death. The truth is that there is a tax with a different name applicable to the estates of Canadians. The deemed disposition tax is similar to estate tax, and it applies to gains on a person's assets which are triggered after his or her death.With careful planning, there are ways in which this tax can be minimized. Any capital gains on the sale of a deceased person's assets will form part of his or her final tax return that must be filed for the year in which the death occurred. That income tax return must also include all income from January 1 of that year until the date of death, including retirement accounts, income from real estate investments, stocks and bonds and proceeds from life insurance.

Wills and estate planning tools are not just for older Canadians

If one were to ask most people in Ontario, they would probably say they hope to live to a ripe old age and pass away peacefully. When people think about wills and estate planning, many consider these important for older men and women who want to pass along their estates. Yet, not everyone is fortunate enough to enjoy an extended lifespan. Having one's estate planning in place can help protect the future of a young family in the event of a tragedy.There are many ways to provide for a family and simplify the estate planning process. Start by creating a comprehensive list of all known assets and decide on the disposition of each asset individually. Even a modest estate can prove to be complicated if a person dies without a will or if provision is not made for every asset of the estate.

Doling out estates can be tricky with blended families

In a typical will and estates scenario, after a person passes away, his or her assets pass along to a spouse and/or any children. Such is an ideal situation, but that is not always how things work out, especially given the prevalence of blended families in Ontario.According to figures from Statistics Canada, as of 2012, more than 12 percent of the 3.7 million families with children in this country are blended with stepparents and stepchildren. Blended families, especially high-net-worth ones, often have especially sensitive estate planning needs. There may be an extensive and complex estate to divide and each person wants to feel he or she has been treated fairly.

Estate litigation after exclusion the of an heir

Following a death, it sometimes occurs that a person who anticipated an inheritance receives nothing, whether by design, oversight or an unforeseen technicality. Whatever the reason, it may be necessary to begin a court battle to right the perceived wrong.One Ontario man recently faced such a situation and went to court to challenge the will of his late paternal grandmother. According to the woman's will, the entirety of her estate was left to her husband, and if he was not alive, then the estate would pass to her two sons, with each son receiving an equal share. Her husband passed away before her, as did one of her two sons.

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