Estate Planning

Stop that Arguing!

By Hull and Hull LLP

There has been a lot of attention in Ontario lately about  the intentions of litigants quarrelling over inheritance. As mentioned in a recent blog this can even happen in advance, in the form of capacity litigation.  In recent cases the Court has made it clear that it is incumbent upon not only the parties but on counsel as well to cooperate sufficiently to move the litigation along. At threat of costs payable by the parties or even their solicitors, all concerned are generally expected to work together to come up with a timely litigation management plan to efficiently dispose of the matter.

Recent Ontario decisions illustrate that greed and rivalry amongst family members will not be tolerated in our courts.  However, this is by no means exclusive to Ontario. In the B.C. case of Calbick v. Warne we see the same familiar scenario. The testator in this case, the parties' mother, knew her children would quarrel after her passing but still couldn't do anything to prevent it.

What more could she have done? In such cases, it might be appropriate to have a family conference to mediate the squabbles prior to death, especially if the testator feels that he or she can have a moderating influence on the family and can explain the reasons behind his or her decisions with the assistance of a professional and neutral mediator. If intentions are understood by the entire family, and if everyone agrees to abide by them in advance of your passing, then they might stay on the same page after your death and there is a reasonable chance of avoiding the fight. Who knows – maybe the rivalry can even be solved once and for all in such an environment. A nice bonus.

Earlier this week I blogged about proportionality, which is now a codified requirement in the Ontario Rules of Civil Procedure. It is a common sense consideration, but unfortunately one that is not all that common in estates litigation where emotions run high and hurt feelings have been building for a lifetime. Be that as it may, litigants be warned, gone are the days when estate litigation was 'free' with the expectation that the estate would pay costs for everyone. 

Sharon Davis

Full post as published by Toronto Estate Law Blog on March 25, 2010 (boomark / email).