Whaley Estate Litigation Newsletter Vol.5 No. 2 May 2015



Thank you for your continued feedback, comments, enquiries and contributions at: newsletter@whaleyestatelitigation.com


Whaley Estate Litigation provides litigation, mediation and dispute resolution throughout Ontario to you, and your clients:

  • Will, Estate, Trust Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Trustee,  Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes          
  • Consent and Capacity Board
  • End-of-Life & Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Agency Services
  • Representation of Persons Under Disability
  • Approval Motions Under Rule 7
  • Probate Applications
  • Mediation
  • Opinions*

* Albert Oosterhoff, Professor Emeritus Western University, Counsel at WHALEY ESTATE LITIGATION, consults on matters within his areas of expertise, providing opinions concerning Wills, Estates, Trusts and related Property matters. Albert provides legal opinion and as such litigation support services to lawyers, law firms and their clients.


Please Enjoy, 


Kimberly A. Whaley
Whaley Estate Litigation





WEL is pleased to welcome Joanne Hwang as an Associate Lawyer coming to WEL with 7 years' experience in Estate Litigation and related matters.  A link to Joanne's bio and CV can be accessed here:






A fresh look: www.whaleyestatelitigation.com


Keep up to date by following our Blog.




Kimberly Whaley was interviewed by Geoff Kirbyson, together with some of her colleagues, Laura Tamblyn Watts and Jan Goddard on Elder Law Issues, Financial Abuse, Issues of Capacity, and Neglect.


View a PDF Copy




Kimberly Whaley and Ameena Sultan co-presented with Dr. Ken Shulman at the Real Estate Summit on April 23rd on Capacity and the Elder Real Estate Client. A link to Kim and Ameena's paper: "Capacity and the Elder Real  Estate Client: A Medico-Legal Perspective" and Dr. Shulman's paper: "Capacity and Older Adults" can be found at:


Link to Kim and Ameena's paper


Link to Dr. Shulman's presentation




Ameena chaired the OBA Dinner With the Honourable Estates List Judges.


Attending the dinner were the Honourable Mr. Justice McEwen, the Honourable Madan Justice Conway, the Honourable Mr. Justice J. Wilton-Siegel, and the Honourable Mr. Justice Penny. The evening provided an opportunity for members of the Bench and Bar to meet and discuss court processes, procedures, and the Practice Direction for Toronto.




Kim and Heather presented at the Ontario Police College this week on Predatory Marriages, Capacity and Financial Abuse.


Link to the paper




Albert Oosterhoff was interviewed by the author, James Dolan, in an article which appears in the Adivsor's Edge, May 2015 Issue.  The article entitled: "What the EU'S Trust Rules Mean for Canadians." 


View a copy of the article here




Ben Arkin will host and Lionel Tupman will speak at this meeting held at WEL's offices on May 25, 2015.




Kimberly Whaley has moved from Chair of STEP Toronto Branch to Past-Chair this May and her successor, Brian Cohen will now be the Chair of the STEP Toronto Branch.  Congratulations to Brian Cohen and to all of the 2015-2016 Executive as approved at the ABM for 2015-2016 as follows:


Branch Chair:  Brian Cohen

Past Branch Chair:  Kimberly Whaley

Deputy Branch Chair:  Ted Polci

Secretary:  Elaine Blades

Treasurer:  Marina Panourgias

Governance Liaison:  Daniel Dochylo

Sponsorship Officer:  Jeff Halpern

Member Services Officer:  Paul Keul

Newsletter Officer:  Joan Jung

Student Liaison Officer:  Corina Weigl

Program Officer:  Craig Vander Zee

Member at Large:  Ian Lebane

Member at Large:  Gillian Musk

Member at Large:  Harris Jones

Ex-officio (non-voting):  Chris Delaney




Kimberly's article "Power of Attorney - Uses and Abuses" was referenced in an article published by the South East Community Care Access, by Gary Buffet, Manager of Communications.







Kimberly attended and presented: "Estate Court Update" at the LSUC 6-Minute Estate Lawyer on May 6, 2015.


Link to article




Congratulations to our colleague and friend Alan Maclure, now, the Honorable Mr. Justice Maclure who will be sitting in London, Ontario for the Ontario Court of Justice.




(i) Blood Rules on Intestacy


Peters Estate (Re) 2015 ABQB 168




A recent case from the Alberta Court of Queen's Bench highlights the issues that can arise when someone makes plans or promises regarding their estate, yet fail to make a Will.


Promises carry little weight without an actual Will and laws of intestate succession will prevail. The end result can be harsh, especially in situations of second marriages with step-children, as was the case before this court. No matter how sympathetic the facts may be, blood relatives trump step-children on intestacy, even if those children were treated as the deceased's own. In other words, blood rules on intestacy.




In Peters Estate (Re), 2015 ABQB 168 the facts are fairly straightforward and, for the most part, probably quite common: A single father of four daughters married for the second time.  With his second wife, he had a son. While the wife never adopted her new husband's daughters, she treated them as her own and introduced them as her daughters. They were a family for 43 years until the husband died.  At the time of the husband's death, the husband and wife were on the verge of bankruptcy. One of the daughters (the Applicant in this case) assisted in bringing about a successful conclusion to the bankruptcy for her step-mother. All five children decided to give up their interest in their father's estate so that the mother could benefit. After these events, according to the Applicant, the mother advised that her estate would be distributed amongst all five of the children accordingly. However, despite these assurances, the mother died without confirming these instructions in a Will and died intestate.


The Applicant brought an application, taking the position that all five children should inherit equally pursuant to the Alberta Wills and Succession Act S.A. 2010, c.W-12.2. However, the court disagreed and the Honorable Justice Jerke held that the biological son was the one and only beneficiary.


The Law


Section 65 of the Wills and Succession Act provides that if an individual dies leaving no surviving spouse (as was the case here) the intestate estate shall be distributed to the "descendants" of the intestate and that where a distribution is made to "descendants" the intestate estate "shall be divided into as many shares as there are . . . children of that individual who survive the intestate".[1]


The Wills and Succession Act s.1(1) describes "descendants" as "lineal descendants". Justice Jerke referenced the definition in Black's Law Dictionary to determine that "lineal descendants" means only "a blood relative in the direct line of descent - children, grandchildren and great grandchildren are lineal descendants".[2] As the step-daughters were not blood relatives they were not lineal descendants. The son was the deceased's only blood relative, so he was her sole beneficiary.


The Applicant argued that section 68(b) in the Act should be applied. That section provides that: "descendants of the half-kinship inherit equally with those of whole kinship in the same degree of relationship to the intestate". The Applicant argued that the step-children should be treated as equal to the biological son because the father was the father to all five children, the mother stood in loco parentis to them, introduced them as her daughters and treated them in every respect as daughters, and their children as her grandchildren. Justice Jerke noted that while the deceased's treatment of them as daughters was "as it should be", it did not change the law.[3] They were not blood relatives, and blood trumps step-children at law.


Justice Jerke concluded the decision with the following warning:


"This case is an example of the personal difficulties and harm to relationships which can occur when individuals do not have a will. The distribution of this modest estate has become an instrument with the potential to create, enhance or perpetuate ill will amongst five family members at a time when they should instead be benefiting from good memories of their mother and father."[4]


Intestacy legislation is based on the assumption that most people would want to pass their estate to their kin and the next generation of their family. For the most part this is likely true. Nevertheless, situations arise where someone may feel closer to a non-relative or step-child than their own 'flesh and blood'. While it is important to have a Will in any case, it is ever so much more important where your wishes or intentions may conflict with the intestacy legislation in your jurisdiction. We have many similar such cases arising from our Succession Law Reform Act intestate succession legislation.


(ii) Universal wisdom from Bambi and why litigants should heed it

by Lionel Tupman


Bryant v. Best, 2015 ONSC 1853, 


In reviewing the Court's Endorsement on Costs in Bryant v. Best, 2015 ONSC 1853, released on March 23, 2015, I am reminded of the enduring wisdom which derives from Thumper, the cartoon bunny rabbit character in Walt Disney's classic movie, Bambi.  So Thumper's advice goes:  "[i]f you can't say something nice, don't say anything at all."  It appears, in communications between forest animals, and in Estate Litigation, this adage remains as true as ever.




On January 9, 2015, the Honourable Madam Justice Gauthier dismissed the moving party's motion.  We have previously written about this case, and you can read all about it on our blog.  I'm not going to address the merits of the decision in this article, but rather, Justice Guathier's decision on costs.


Justice Gauthier's decision on costs was released on March 13, 2015.  The Estate Trustee During Litigation (the Respondent) (the "ETDL") was entirely successful in defeating the moving party's motion.  Justice Gauthier refers to the ETDL's argument on costs, describing the evidence filed and the conduct of the parties during the motion, stating:


[4] Throughout the proceedings initiated by the August 5, 2014, Notice of Motion, the Trustee was repeatedly accused of dishonesty, and incompetence. The language used in Steven's material was intemperate and disrespectful. The complaints made against the Trustee in the execution of his duties were unfounded and unjustified. Sarah supported Steven's Motion, and herself made unfounded and unjustified accusations against the Trustee.


[5] The positions advanced by both Steven and Sarah were ill-considered from the outset and completely unsupported by any cogent or coherent evidence.


[6] It was reckless for Steven and Sarah to have caused such substantial legal expenses to be incurred, and to have delayed the winding up of this estate.


[7]  The material filed on behalf of Sarah contained largely her opinion on matters, and few relevant facts. Likewise, for the material filed by Steven. Even after the cross-examination of the Trustee, there was no evidence obtained that could justify the removal of the Trustee.


[8] Steven's treatment of Lynette Burton was equally disrespectful; his allegations of dishonesty on the part of Lynette Burton were not substantiated by the evidence.[5]


Accepting this as an accurate summary of the conduct of the parties during the motion, and leaving aside the other parties' submissions on costs, it may occur to many litigators reading this article that conduct consistent with that described at paragraphs 4-8 of the decision may and in many circumstances will attract an award of costs on a substantial indemnity basis.


Indeed, Justice Gauthier ultimately found the following:


[34] The Trustee then is entitled to his costs relating to the motion.  Insofar as the scale of costs is concerned:


It is a well-established principle of law that costs on a substantial indemnity basis are to be awarded only in rare and exceptional cases, where there has been reprehensible, scandalous or outrageous conduct in the course of the litigation.




[36] The jurisprudence also establishes that costs on the higher scale will be awarded where there are unfounded allegations of fraud and dishonesty. (Twaits v. Monk2000 CanLII 14725 (ON CA), [2000] O.J. No. 1699, 8 C.P.C. (5th) 230 (C.A.).


[37] Put another way in DiBattista v. Wawanesa Mutual Insurance Co. (2005), 2005 CanLII 41985 (ON SC), 78 O.R. (3d)445 (S.C.J.):


Costs should be awarded on a substantial indemnity basis were unfounded allegations of a fraud or dishonesty or other improper conduct seriously prejudicial to the character or reputation of the party are made.


[38] In the within proceeding, Steven did make unfounded allegations of fraud, dishonesty, incompetence, and other improper conduct "seriously prejudicial to the character or reputation" of the Trustee. Sarah supported Steven's position.


[39] Steven's conduct merits condemnation by way of an award of costs on the higher scale.


[40] The positions taken by Steven and Sarah were not supported by the evidence and were unreasonable. The complaints about the Trustee's actions, and about any delay, were unfounded and unjustified.


[41] In all the circumstances, the Trustee should be awarded his costs on a full indemnity basis.  In addition to the legal fees the Trustee incurred, he expended much time, not in the administration of the estate, but rather, in responding to Steven's and Sarah's unfounded and unjustifiable attacks on his integrity and his competence and professionalism. Further, as a matter of necessity, the Trustee had to retain and pay for legal counsel to represent him on the motion.




The fact that unsubstantiated allegations of fraud or dishonesty may attract an award of costs on a substantial indemnity (or other elevated) scale should be familiar to most lawyers.  To be fair, the moving party, "Steven" was a self-represented litigant and may not have been aware of this general rule-we don't know since this information is not provided in the case.


However, it bears repeating to all litigants and counsel who litigate and/or practice in the field of Estate Litigation, that allegations of fraud and dishonesty must not be frivolously or arbitrarily pleaded.  Proving fraud or breach of fiduciary duties as causes of action is not a task to be lightly undertaken.  Without compelling, substantial proof of such causes of action, litigants will have difficulty satisfying a Court that a finding going to the character, integrity, competence or professionalism of a Defendant/responding party should be made. 


Quite simply, you need real evidence of fraud in order to plead it.  Unlike other causes of action which can be pleaded for good measure, any cause of action which indicates "bad faith" or dishonesty on the part of the Defendant/responding party must be carefully considered before being pleaded-the pros and cons must be weighed by litigants and counsel, and the strength of the evidence supporting the allegation must be viewed critically and pessimistically to assess the litigant's risk to an award of elevated costs.


This is not to say, however, that litigants should not plead fraud, dishonesty, etc.  To be clear, where compelling, cogent, convincing evidence exists of dishonesty or fraud (or any other such causes of action), these claims may be advanced. 


Litigants in the Estate Litigation area often suspect that their opponents are dishonest thieves who are attempting to extort or swindle from an Estate, a vulnerable person, or beneficiaries.  What everyone should remember however, (counsel and clients alike) in Estate Litigation, is that allegations of dishonesty and fraud must not be made lightly and without appropriate and compelling evidence to substantiate such claims.


Despite the wisdom of Thumper's advice, Thumper may not have been entirely correct.  The more accurate adage to live by, at least in litigation, goes like this:  "if you can't say anything nice, make sure you can prove whatever bad faith, dishonesty or fraud you are alleging."

[1] 2015 ABQB 168 at para.7.

[2] 2015 ABQB 168 at para.10.

[3] 2015 ABQB 168 at para.16.

[4] 2015 ABQB 168 at para.20.

[5] Bryant v. Best, 2015 ONSC 1853 at paras. 4-8.



1. Nice Knowledge Exchange

May 28, 2015

Physician Assisted Suicide

Speakers: Kimberly Whaley, Heather Hogan & Mark Handelman  




2. ILCO Conference, Sheraton on the Falls, Niagara Falls

May 29, 2015

Fiduciary Accounting

Speaker, Kimberly Whaley and Heather Hogan



3. B'nai Brith Conference

Gironda Estate - Undue Influence

June 2, 2015

Speakers:  Kimberly Whaley and Heather Hogan


4. LSUC Program, Family Law and the Elderly Client

Capacity To Marry, Divorce, Separate, Divorce, And Live Common Law

June 9, 2015

Speaker: Kimberly Whaley

Chairs: Jan Goddard and Nimale Gamage



5. The Scarborough Hospital's Annual Geriatric Education Day, Scarborough General Hospital: Planning for Future Disability

June 12, 2015

Speaker: Kimberly Whaley, Heather Hogan and Mark Handelman


6. STEP CANADA National Conference

Attacking and Defending Gifts

June 18-19, 2015

Speaker: Kimberly Whaley with John Poyser, Traditional Law LLP



7. LSUC, Practice Gems, The Administration of Estates 2015

September 10, 2015

Co-Chairs: Kimberly Whaley and Tim Grieve



8. Frontenac Law Association 1000 Islands Legal Conference

Gananoque,  September  18/19, 2015.

Speaker:  Kimberly Whaley



9. OBA, YLD, Wills and Estate Planning: A Primer

September 29, 2015

The Initial Client Meeting: Practice Issues - Before the Meeting

Speakers: Kimberly Whaley and Lionel Tupman


10. LSUC Estates Summit

October 7 and 8, 2015


Speakers: Kimberly Whaley and John Poyser


11. CBA Wills, Estate and Trust Fundamentals for the Estate Practitioner

October  15-17, 2015

Trends in the Practice of Estates and Trusts: Building on Estates Practice 

Speaker, Kimberly Whaley


12. LSUC, The Intersection of Estates Law and Bankruptcy Law: Administration of the Insolvent Estate

October 30, 2015

Chairs: Frank Bennett and Ben Arkin


13. Osgoode Professional Development, Key Issues - Best Practices - Practical Approaches

Advising the Elderly Client,  November 4-5, 2015

Claims Arising out of Later Life Partnerships

Speaker: Kimberly Whaley



14. CCEL 2015 Elder Law Conference, Vancouver, BC

Capacity and Predatory Marriages

November 12-15, 2015

Speaker: Kimberly Whaley 


IV. In Case You Missed It - Last Month's Highlights from Our Blog 


Click to link: 


Lorintt v. Boda, provides litigators and solicitors with guidance on rebutting the presumptions of resulting trust and undue influence

V. Newsletter Archive

Past issues of our Newsletter can be viewed on-line by following this link to our Newsletter Archive:


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This newsletter is intended for the purposes of providing information only and is to be used only for the purposes of guidance.  This newsletter is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


Newsletter Contents
I. WEL News
II. Law Review
III. Upcoming Programs
IV. Recent Blog Posts
V. Newsletter Archive

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Contact Info

45 St. Clair Ave West
Suite 600
Toronto, ON, M4V 1K9
Tel: (416) 925-7400 
Fax: (416) 925-7464

Kimberly A. Whaley
(416) 355-3250
Mark Handelman
Firm Counsel
(416) 355-3254

Albert H. Oosterhoff
Firm Counsel
(416) 355-3266
Ameena Sultan
Associate Lawyer
(416) 355-3258


Benjamin D. Arkin
Associate Lawyer
(416) 355-3264 

Heather B. Hogan
Associate Lawyer
(416) 355-3262

Lionel J. Tupman
Associate Lawyer
(416) 355-3258

Joanne Hwang
Associate Lawyer
(416) 355-3270
Deborah Stade
Office Manager
(416) 355-3252
Bibi Minoo
Estates Clerk
(416) 355-3251

Birute Lyons
Law Clerk
(416) 355-3259

Marylin Tait 

Legal Assistant

(416) 355-3255


Rita McHorgh
Legal Assistant
(416) 355-3261

Kimberlee Pearce
Legal Assistant
(416) 355-3257

Celine Byer

Office Coordinator

(416) 355-3253






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