Estate Law

   

Let SMP Law SiMPlify Your Estate Matter

Estate Planning can be a confusing and overwhelming time. To add to this confusion may be the loss of a family member which can lead to disagreements among family and eventual litigation over a will and the estate of the deceased. SMP Law’s unique approach to Estate law allows you to address your concerns in an environment that competently addresses not only your legal concerns but also your emotional concerns during this difficult time.

SMP Law’s estate practice areas include the following:

Estate Administration – The management and settlement of the estate which usually involves the collection of the decedent’s assets; payment of debts and claims against the estate; and, the distribution of the remainder of the estate among those entitled thereto.

Trust – A trust is created to hold property or assets for the benefit of a particular person called the beneficiary. It is managed by a person called a trustee, who has an obligation to deal with the property for the beneficiary of the trust.

  • Will – A person’s will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after death. It takes effect when the person dies.
    • Will challenges – A will may be invalidated if it can be shown that the testator lacked testamentary capacity or that it was improperly executed or the will was created under undue influence or when there is suspicious circumstances or if the testator’s signature was forged by someone claiming to be the testator.
    • Interpretation –testator’s intention, if clear, must be followed.  The problem is that depending on what side you are on, the will may be interpreted differently.

  • Dependant support and relief claims – Dependants of a deceased may have a claim to support, especially when the deceased has not made adequate provision for the proper support for a spouse, parent, child or sibling, the deceased was providing support or was under a legal obligation to provide support at the time of his/her death.

    A “spouse” includes unmarried persons who “have cohabited continuously for a period of not less than three years”.  A “child” includes a grandchild or any person whom the deceased has demonstrated a settled intention to treat as a child of his/her family (other than a foster child).
     
  • Unjust enrichment – Generally speaking, it is an enrichment of the defendant “at the expense of another” that is, of the plaintiff.

    There are many circumstances in which a defendant may find himself in possession of a benefit which, in justice, he should restore to the plaintiff.
     
  • Quantum meruit claims – deal with situations where it is impossible to find the existence of an enforceable contact but where one party has conferred a significant benefit to another under a mistaken belief as to a given set of facts. There must be some wrongful conduct on the part of the party who gets the benefit. The party conferring the benefit must suffer some form of deprivation as a result. There must be an absence of juristic reason for conferring the benefit.

Capacity and Guardianship Disputes – Under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, a person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property. The most common basis for a capacity assessment request is the person’s lack of capacity to manage property

Trustee and Attorney – A trustee holds the legal title to property for the benefit of another.

  • Removal – a trustee may be removed where he or she refuses or is unfit to act, becomes incapable of acting or, remains out of the province for more than 12 months. The court may also remove a trustee when it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, as where an existing trustee is bankrupt, incompetent or has been convicted of a crime.
     
  • Compensation – A trustee, guardian or personal representative is entitled to such fair and reasonable allowance for the care, pains and trouble, and the time expended in and about the estate, as may be allowed by the court.
     
  • Obligations – trustees are held to the standard of a reasonably prudent person administering their own affairs and can be excused from errors in administering the trust when said errors arise honestly and in good faith. The trustee’s duty is to act impartially between beneficiaries. A trustee must also keep an accurate account of the trust property and must always be ready to render it when required.

SMP Law’s focal point of Estate Law is addressing the client’s concerns in a compassionate manner. SMP Law approaches Estate Law with the appropriate sensitivity and/or aggressiveness required in this area of law.

Anonymous[June 28, 2018 | Estate Law]
Shawn worked with me for over two years, through a very complex and stressful case. He never stopped fighting for me and was always there for me, day or night, to answer my questions or just help me get through the day. I would highly recommend his firm to anyone facing any sort of legal battle. Much better to have him on your side than have to face him from the other side! All his support staff are stellar too, can’t say enough good things about this law firm. Source: LawyerRatingz.com
T.R.[March 16, 2017 | Estate Law]
Mr. Philbert is truly an amazing lawyer! I have never met a lawyer quite like him. He has the ability to show you that he cares about you and your case and the emotions that come with it…yet, put the horns on to fight for you. I wish the world had more men and lawyers like him because he can return your faith in humanity in the darkest of hours.

Let’s discuss how your estate law matter can be SiMPlified.