PRACTICE AREAS

The law in Ontario acknowledges that there is a moral obligation for the needs of dependants, including children, parents and spouse to be given adequate support from one’s Estate. Ontario law has acknowledged that certain relationships trump a testator’s freedom to distribute their assets as they wish.

Who is a Dependant?

To determine whether you are a dependant of the deceased is a two-prong test: 

1. Are you a spouse, child, or parent of the deceased?
2. Was the deceased providing support or under a legal obligation to provide support at the time of their death?

Spouse includes common-law spouse or when there is a relationship of some permanence ie. you and the deceased have a child together. 

Support includes financial, physical, or emotional support. 

Amount of Support?

The amount of support awarded by a court depends on many factors and the amount of weight placed on each factor varies case by case.  For a complete list of the factors taken into account please see section 62 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 . Some key factors a court will consider:

• the dependant’s age and physical and mental health;
• the dependant’s needs, in determining which the court shall have regard to the dependant’s accustomed standard of living;
• the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
• the proximity and duration of the dependant’s relationship with the deceased;
• the circumstances of the deceased at the time of death. This includes the size of the estate;
• any agreement between the deceased and the dependant;
• the claims that any other person may have as a dependant;
• if the dependant is a spouse, a course of conduct by the spouse during the deceased’s lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
• the length of time the spouses cohabited. 

This brief overview is just a basic introduction to the topic. Reading this article is only meant to be the first step for those who were disinherited or someone who was not properly provided for in a Will and think they may be a dependant who can ask the Court for support. Your best interest is our main concern and we make sure to adopt cost-effective solutions in a timely manner.

There is also a time period for when a dependant can apply for a claim against a deceased’s estate. 

We will explain your rights and explore your options in a way that is simple to understand. It’s not just about the law, it’s about knowing the process to determine the most cost-effective solutions. 

We offer a free 30-min consultation, which is an opportunity for you to speak to a lawyer before making any commitment. To schedule an appointment, please call us at (416) 953-4105

Oftentimes elderly parents tend to distribute their wealth to their adult children and grandchildren prior to their death by way of gifts. This is referred to as inter vivos transfers. 

Gift vs. Loan 

A gift is a transfer in which the transfer or does not expect to be repaid.  The intention to make a gift tends to be reflected in emails, correspondence or other documents, or perhaps in the absence of evidence of security, records, repayments or timely efforts to collect repayments.

A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought, but can also be reflected in emails, correspondence or other documents, and by the existence of security, records, repayments or by evidence of timely efforts to collect repayments. 

The onus of proof to establish a valid gift rests on the recipient. The onus of proof to establish a valid loan rests with the lender.

Dispute resolution by lawyers, mediators, arbitrators or the Court will require the consideration of a number of factors to determine whether the transfer of money, assets or property was intended to be a gift or a loan. 

Rebuttable Presumptions

In Ontario there is a presumption of resulting trust which occurs when a gratuitous transfer to a non-family member is presumed to be held in trust by the recipient. The law presumes that parties intended a bargain (loan), not to make a gift.

This presumption also applies to gratuitous transfers by parents to adult children – when a parent transfers property to an adult child that property is presumed to be held in trust by the child for the parent in a resulting trust. 

A presumption of advancement applies when a parent makes a gratuitous transfer to a minor child. In these circumstances a gift will be presumed. 

These presumptions may be most important where evidence of the parties’ intentions is lacking.  The presumptions may be rebutted by evidence of the parties’ intentions.

If you have concerns whether a gift or loan was affected, contact our office for a free consultation. We will help you in assessing your circumstances and provide you with your options.

Medical science is advancing, which results in people living longer and longer. Unfortunately, longer life spans often result in cognitive decline. If you suspect your loved one suffers or has suffered from cognitive issues that may have affected their capacity to make a will, manage their property or personal care, appoint a power of attorney, and/or get married, we can help you understand the different levels of capacity required for each task. 

Test for Capacity

Depending on the task at hand, the test for capacity is different. For instance, one may have the capacity to manage their property but not the capacity to make a Will. 

The highest degree of capacity at law is required to execute a Will and referred to as testamentary capacity. The testator must have a “sound disposing mind” at the time of execution of their Will. 

Testamentary capacity is defined as: 

• An appreciation of the nature of the will and its effects; 
• Appreciation of one’s assets and liabilities (i.e. the extent of the property being disposed of);
• Appreciation of any and all possible legal and moral claims that might be made against the estate; 
• Absence of any mental illness that might in some way influence the terms of the will (i.e. both general insanity and insane delusions or hallucinations). 

Whether one has testamentary capacity is decided on a case-by-case basis by the court. 

We can help you understand the legal test for capacity applicable to your circumstances, investigate the facts and explain your legal options. Call us for a free 30-min consultation at (416) 953-4105.

A power of attorney is a legal document, which gives someone else the authority to make decisions on your behalf. 

In Ontario there are three kinds of Power of Attorney:

1. A Continuing Power of Attorney for Property covers your financial affairs and allows the person you name to make decisions for you even if you become mentally incapable.
2. A non-continuing Power of Attorney for Property covers your financial affairs but can’t be used if you become mentally incapable. You might give this Power of Attorney, for example, if you need someone to look after your financial transactions while you’re away from home for an extended period of time.
3. A Power of Attorney for Personal Care covers your personal decisions, such as housing and health care.

In order for a Power of Attorney to be valid one must: 

• Be at least 18 years old for Property and 16 years old for Personal Care; 
• Have the requisite mental capacity; 
• Be signed by two witnesses who are eligible to serve as witnesses. 

A variety of disputes may arise in the context of power of attorney such as: 

• A power of attorney is not complying with their legal obligations, has breached their fiduciary duty to the grantor, or has been negligent in their actions as the power of attorney; 
• The power of attorney document was procured fraudulently; 
• Dispute as to whether the grantor had the requisite mental capacity to grant the power of attorney. 

If you are appointed as a power of attorney, our firm can assist you in outlining your legal responsibilities and obligations to prevent future disputes or litigation. 

If you are concerned that a power of attorney is not acting in the best interests of the grantor or have any other concerns, contact our office for a free 30-min consultation. We can assess the circumstances and explore your legal options. 

In Ontario, testators have testamentary freedom, meaning that a testator is able to choose whoever they desire to execute their estate upon death. This person is referred to as an “executor” or “estate trustee”.

Removal of an Estate Trustee

The Courts do not remove estate trustees easily. Often misconduct on behalf of the estate trustee must be evident in order to successfully remove an executor. 

Duties of an Estate Trustee

An estate trustee is a fiduciary meaning they owe a duty to exercise the care and diligence that a person of ordinary prudence handling the deceased’s property would. The estate trustee must make decisions solely in the best interest of the estate. The estate trustee also owes a duty to the beneficiaries, including: 

• The duty to disclose;
• The duty to account;
• The duty to practice an even hand amongst beneficiaries; 

If you have concerns over the actions of an estate trustee, our firm can help you determine whether the estate trustee has breached any of their duties. 

We offer a free 30-min consultation, which is an opportunity for you to speak to a lawyer before making any commitment. Call us for a free consultation at (416) 953-4105

Unjust Enrichment

In order to make a claim of unjust enrichment against another person, the claimant must show:

• The other person received a benefit;
• The claimant suffered a loss that somehow corresponded to the benefit of the other person; and, 
• There was no justifiable reason in law for the benefit and the loss.

If these three elements can be successfully proven by the claimant, then the unjust enrichment may be remedied by the court in two ways: a constructive trust (i.e., giving the claimant an interest in real property to which the unjust enrichment is connected) or a monetary award. These claims often arise in the estate context where the claimant has provided some kind of benefit, service, or work for the other person in exchange for the promise of an inheritance from the other person’s estate after he or she dies, yet after death, it is discovered that the inheritance is not forthcoming.

Quantum Meruit

A quantum meruit claim is a claim for damages for recovery on a contract where the contract was not completed yet its terms are unenforceable. If the parties, by their conduct, have created a relationship that is contractual in nature, even if there exists no enforceable contract per se, and where an unjust enrichment to one of the parties can be proven and corroborated by third parties, then a quantum meruit claim may be made. 

We offer a free 30-min consultation, which is an opportunity for you to speak to a lawyer before making any commitment. Call us for a free consultation at (416) 953-4105

Are you considering challenging a Will? The mere fact that you were not treated fairly in a Will may not be enough to contest it. We can help you determine whether you have standing to contest a Will and we will also advise on your probability of success based on past case law. 

There are various reasons for a valid Will challenge.  These are some of the grounds which one can successfully challenge a Will in Ontario are as follows: 

1. Lack of Testamentary Capacity; 
2. Undue Influence; 
3. Fraud; 
4. Lack of Valid Execution of a Will.

Contesting a Will is expensive, time-consuming and can be emotionally-draining. We can help you thoroughly investigate the facts and explore your legal options. Call us for a free 30-min consultation at (416) 953-4105.

Where the terms of a Will of a deceased person are unclear or ambiguous, the estate trustee or any person with an interest in the estate can bring an application to the Ontario Superior Court of Justice to seek the advice, direction, and opinion of the court regarding the testator’s intentions. The court will attempt to determine, having regard to the specific words used in the will and the circumstances of the testator’s life, what the testator really intended to have happen with respect to the disposition of his or her property after his or her death.

If you are an estate trustee or have an interest in the estate of a deceased, our firm can assist you in bringing an application seeking advice and/or direction from the Court, if necessary. 

We offer a free 30-min consultation, which is an opportunity for you to speak to a lawyer before making any commitment. Call us at (416) 953-4105 to schedule an appointment.

There can be many advantages to a properly established trust in the appropriate circumstances, such as tax-savings, protection and management of funds for minors or disabled individuals, preservation of government disability benefits for disabled individuals, the ability to ensure the proper substitution and replacement of trustees, and the ability to choose “remainder” beneficiaries after the death of the primary beneficiary.

We offer a free 30-min consultation, which is an opportunity for you to speak to a lawyer before making any commitment. Call us at (416) 953-4105 to schedule an appointment.

There are clear and practical benefits to having a Will. There are further benefits to having a legal professional draft your Will. 

A lawyer can help you prepare a solid estate plan to ensure that your money is not wasted by paying unnecessary taxes, incurring years of delay and legal costs. Invest in professional advice to make sure your hard-earned money goes straight to those you love.

Schedule a consultation with the Kimel Law Group by calling (416) 953-4105.