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Tag: Litigation

ESTATE LITIGATION: Challenging a will with the court’s assistance

Other kinds of orders are necessary in estate matters in specified circumstances, Rules of Civil Procedure (Rules), r. 74.15, which can be obtained from the court. For instance, an order for assistance is obtained on a motion made without notice, supported by affidavit evidence, Rules, r. 74.15(2). With certain exceptions, an order for assistance is to be served by personal service or by some other method, as directed by the court. The court can also direct any person to be examined under oath to decide a motion for such an order, Rules, rr. 74.15(3) and (4). Generally, common types of orders for assistance include the following:Order to Accept or Refuse Appointment as Estate Trustee With a Will, r.74.15(1)(a) — Form 74.36When this order is passed, an estate trustee is compelled to apply for a Certificate of Appointment within a given time limit. Failure to do so results in he or she being deemed to have renounced the right to do so. It is a useful tool in situations where a person having a financial interest in an estate comes to know of a will, as also the fact that no steps have been taken by the named estate trustee to apply for a

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ESTATE LITIGATION: Challenging a will and strategies for all those concerned

Submission of Rights to the CourtAfter submitting his or her rights to the court, Rules of Civil Procedure (Rules), r. 75.07.1, a person can either:Request on a motion for directions respecting the conduct of the Application for a Certificate of Appointment; orFile a statement of submission of rights to the court in response to a statement of claim filed by the plaintiff in compliance with the order giving directions. Although he or she is not a party to the proceedings, the person is entitled to written notice of the time and place of the trial and a copy of the judgment disposing of the matter. Such a person is not entitled to costs, nor is he or she liable for any party’s costs, except when the costs are ordered to be paid from the estate. The major benefit of this process is that the matter cannot be settled without his or her involvement.Settlement Involving a Person who has Submitted Rights to the Court

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ESTATE LITIGATION: Challenging the validity of a Will after probate

Order for Return of Certificate (Probate already obtained)When a Certificate of Appointment of Estate Trustee (Certificate) has already been issued, the proceedings to challenge a will are not commenced by filing a notice of objection. In that event, the party wishing to challenge the validity of a will has to obtain an order directing the Certificate to be returned to the court, Rules of Civil Procedure (Rules), r. 75.05(1). The order can be obtained on a motion without notice by filing a draft order and an affidavit in support, specifying the interest of the party applying for the order, and the general grounds upon which the order is requested for. According to the order, the Estate Trustee is to return the original Certificate of Appointment to the court forthwith. After the order has been served on the Estate Trustee, the appointment has no further effect and no further action can be taken with respect to the administration of the estate until the issues respecting the validity of the will have been determined, or the court orders the Certificate to be released back to the estate trustee, Rules, r. 75.05(3).

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ESTATE LITIGATION: Challenging the validity of a Will prior to probate

When someone seeks to overturn the last will and testament of a deceased, the process is known as challenging a will. Usually, the common grounds for challenging the validity of a will are:The absence of testamentary capacity;The lack of approval or knowledge of the contents of the will;The indication of undue influence; orThe non-compliance with the requirements of due execution as stipulated in Part I of the Succession Law Reform Act (SLRA).As well, there could be less frequent challenges based upon allegations, such as forgery or fraud. Those propounding the will have to prove that the testator had the required testamentary capacity.  They have to establish, on the balance of probabilities, that the deceased possessed the requisite level of testamentary capacity when the will was executed. If undue influence is the issue, those alleging undue influence have to establish that allegation. Then, there is the doctrine of “suspicious circumstances”, which includes such matters as the age and medical condition of the testator, the opportunity of others to exercise a degree of influence over the testator, and the significance of changes made in

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Contract Law: Rescission Anyone?

When a client has an issue with a contract he/she most certainly looks to whether the issues caused any damages.  I would agree that this is an automatic first step in the conceptual process involved in creating a remedy to address a client’s needs.  But what about the case where you simply want the contract to be treated as a nullity and be restored to where you were before the contract was consummated.  In that situation you are asking either the other party to the contract or the court to rescind the contract.There are essentially two types of rescission albeit there is some overlap in respect of the grounds which would justify such rescission.  The first (i.e. common-law rescission) does not require court intervention.  This occurs where the contract on its face has a clause which makes it voidable at one of the party’s option.  So what do you do?  You carefully review the clause, and fulfil the operative steps required to “rescind” the contract.  Other than where the contract specifically provides for it, this “common law” rescission applies where an infant has entered into a contract which is not binding on him/her; fraud; and where a contract has been procured by duress.  Here, the party also has the right to seek other common law remedies.

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Magna Intl. Inc. Shareholders Lose Appeal: Proposed Arrangement Satisfied “Fair and Reasonable” Test

The appeal by shareholders, British Columbia Investment Management Corporation and others, from Magna International’s successful application for an order approving a proposed arrangement pursuant to s. 182(5) of the Business Corporations Act has been dismissed. Magna designed, developed and manufactured automotive systems.The opposing shareholders were the only Class A shareholders who opposed approval of the proposed arrangement. Collectively, they owned less than three per cent of all of the Class A Shares.Magna had a dual class share capital structure comprising Class A subordinate voting shares (the “Class A Shares”) and multiple voting Class B shares (the “Class B Shares”). The company’s controlling shareholder, the Stronach Trust, owned, outright and through other corporations, all of the 726,829 outstanding Class B Shares.

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COMMERCIAL LEASING: Fundamental Breach and Exclusion Clauses

The second instalment in our review of the emerging trends in commercial lease jurisprudence is evident in the lawsuit relating to HREIT Holdings 45 Corp. v. R.A.S. Food Services (Kenora) Inc., where the court held that the new Landlord had lost its right to collect a higher amount of rent due to two reasons: 1) It’s conduct ; and/or 2) It was estopped on the basis of equity.While operating a restaurant in the complex in 1999, the tenant got the previous landlord to agree to waive the increase in basic rent for years 6-10 of the lease. The leased premises changed hands in 2005, and the purchaser became the landlord.

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COMMERCIAL LEASING: How the Court Applies Equitable Remedies

There have been some interesting developments in commercial leasing law over the last year, among which can be seen important trends in commercial leasing jurisprudence.Equitable RemediesIt has been found in the past year that the courts will make every effort to use equitable remedies in circumstances where strict contractual interpretation leads to absurd commercial

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TESTIMONY & BEING EXAMINED IN A DISCOVERY

At the outset, it is necessary to note that in Ontario there is no discovery in applications. In Ontario discoveries occur in actions; a two-part process, beginning with documentary discovery under the Rules of Civil Procedure (Rules) and then oral discovery (examinations). The purpose of discovery is sixfold, enabling the party to:

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HOW TO COUNTER-SUE!

If a litigant decides to proceed by way of an action, rather than by an application, it is necessary to serve either a Notice of Action (followed by a Statement of Claim), or simply a Statement of Claim.  Countermeasures can be taken by the defendant consisting of  a counterclaim against the plaintiff; a crossclaim against any co-defendant; or a third party claim against a person not yet a party to the litigation (the main action).

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