Estate Litigation: The Practical Guide for Legal Professionals 2022

During the first evening of the program, our faculty of industry experts will guide you through various basic elements of estate litigation, including tips on conducting your first meeting with a client, ascertaining relevant limitation periods and preparing for mediation and potential settlement.

4:00 p.m.

Introduction by Chairs and Overview of the Program

4:10 p.m.

• Information to obtain at the first client meeting
• Legal issues in the challenge to a will, such as:
  • Due execution of formal wills
  • Holograph wills
  • Substantive validity, testamentary capacity, undue influence, fraud and mistake
  • The parties: who has standing in will challenges?
• The lawyer’s role in protecting individuals with a potential for diminished capacity or undue influence

5:30 p.m.

Refreshment Break

5:45 p.m.

• Preparing for mediation and settlement, including:
  • Understanding the purpose of the mediation
  • Drafting mediation documents and minutes of settlement
• Limitation periods: discoverability, intervening factors, proof and exceptions
• The procedural rules and legal test for proving that a will has been lost or destroyed, and the types of evidence that are admissible regarding the content of a lost or destroyed will
• Understanding how to obtain orders for assistance, including:
  • The types of orders that may be sought
  • The availability of orders in particular scenarios
  • The procedure for obtaining orders for assistance

Moving beyond the foundation that our faculty created in module one, this second session will examine a variety of the issues often encountered in contentious estate litigation and give you the procedural know-how needed to manage such matters as dependant support claims, the appointment of a litigation guardian, seeking directions from and submitting rights to the Court.

4:00 p.m.

• Objecting to the issuance of a certificate of appointment: procedures and best practice points
• Dealing with the revocation or return of a certificate of appointment
• Claims for dependant support against the estate:
  • Who qualifies?
  • What are the limitation periods?
  • What factors and evidence will the court consider?
• Commencing claims pursuant to the Estates Act
  • Application for order allowing claim against the estate
  • Powers of the court relating to liquidated and unliquidated claims

5:30 p.m.

Refreshment Break

5:45 p.m.

• Understanding when and how to seek the appointment of an estate trustee during litigation
• Litigation guardians of minors and mentally incapable persons: the process of appointment and procedural rules
• Applications and motions for directions from the court, including:
  • Service, order, pleadings and the procedure where a statement of claim has been served
  • The effect of failing to file pleadings
• Statement of submission of rights to court

In this culminating session, our faculty will share their practiced techniques for managing the more complex processes and issues that every estate litigator encounters, like passing accounts and locating missing beneficiaries and the submission of evidence in a contentious matter.

4:00 p.m.

• Navigating applications to pass accounts: procedure, entitlement, compensation and objections to accounts
• Dealing with evidence in contentious proceedings, including a discussion of onus, examinations for discovery and medical witnesses
• Analyzing the evidence cheat sheet, covering such topics as:
  • What constitutes meaningful corroboration?
  • The admissibility of business records, expert opinion evidence and retrospective opinions regarding testamentary capacity
  • Past recollection recorded/present recollection revived
  • Application of the rule in Browne v. Dunn to estate matters
• Understanding the estate trustees’ obligation to locate missing beneficiaries

5:30 p.m.

Refreshment Break

5:45 p.m.

• Discussion of the latest case law and issues concerning:
  • Costs in estate litigation
    • Development of the modern approach to costs since McDougald Estate v. Gooderham
    • Payment of costs by the estate, blended costs awards and costs against lawyers personally
  • The deemed undertaking rule
    • Juman v. Doucette: the underlying principles of the rule
    • Order for examination of a nonparty witness
  • Unjust enrichment in will challenges
    • Analyzing developments since the Supreme Court of Canada trilogy: Murdoch v. Murdoch, Rathwell v. Rathwell and Pettkus v. Becker
    • Remedies in estate matters