Recent Trends in Estate Litigation - Messages from the Court

This blog sets out recent Court trends in estate litigation.  On May 12th, 2022, Ian Hull, Suzana Popovic-Montag, and Jordan Atin discussed this topic on eState Planner Academy’s advanced webinar.

Disclosure

Trends in disclosure depend on the nature of the litigation, but in cases of Will challenges or trust challenges, courts have been erring on the side of production.  However, proportionality is central and Courts are moving away from blanket orders of disclosure to a limited scope of disclosure.

Some suggestions at the planning stage include using software such as eState Planner, which is helpful in producing fulsome data in the case of Will challenges.  Recording client meetings can also be beneficial to ensuring no information is lost.  Recordings (like lawyer notes) are covered by attorney-client privilege.

In the case of challenges by discretionary trust beneficiaries, the Courts are in favour of broader disclosure and accounting rights for discretionary beneficiaries for both accounting information as well as documents used by Trustees in exercising their discretionary powers.  Absolute discretion for Trustees is not really absolute, they must act in the best interests of the beneficiaries (Walters v. Walters, 2022 ONCA 38).   Trustees are encouraged to keep complete records, not only of their decisions but of what documents they relied on in making such decisions to show judicious exercise of their powers.

Costs

Trends in Costs Orders by the Courts are difficult to comment on, as they are still widely discretionary.  Some view costs as following the cause (ie. the loser pays), but practically speaking many estate litigation files get settled and the estate tends to fund a big part of the costs in coming to a settlement.  In addition, the Court in the recent case of McGrath v. Joy, 2022 ONCA 119, held that “generally the parties’ reasonable costs should be payable from the estate. A departure from this general principle requires justification on the part of the court,” suggesting that in many cases the estate will be responsible for covering the costs.  

Dependant’s Support Claims

Dependant’s Support Claims are common place in the world of estate litigation.  A Dependant Support Claim is a claim made against the estate of a deceased person by a dependant who meets the definition of a dependant and the test under the Succession Law Reform Act.  

At the planning stage, the planning lawyer should make the client aware of a potential claimant and that such person may make a claim for support against the estate if they are not adequately provided for.  The extent of the entitlement is difficult to determine at the planning stage. 

At the time when a Dependant wishes to make a claim, the estate litigator can generally give the Dependant a sense of how much they should be able to make a claim form.  The amount depends on the relationship of the Dependant and generally begins with a Family Law Act support calculation, considering factors such as how much does the dependant needs, how much are they accustomed to, and how much is at play.  

eState Planner Academy hosts advanced topic webinars every Thursday at 12:30 (ET). You can sign up for free CPD credits here:  

https://landing.e-stateplanner.com/en-ca/e-state-webinar

To watch a recording of this webinar, you can register here:

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