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61895.06This paper highlights some of the more fundamental concepts of mediation, noting some useful and progressive articles on the subject. This paper was presented at LESA's Estate Litigation program in February 2014.
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61895.05This paper, prepared by an accountant, looks at the obligations of a personal representative from an accounting perspective, including the preparation of a proper financial statement (precedents attached). It also examines ways to minimize a personal rep’s exposure to litigation during the financial administrative of an estate. Lastly, the author provides insights into how information from an accountant might help build an estate litigation case. This paper was presented at LESA's Estate Litigation program in February 2014.
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61895.04This paper looks at some of the more common applications in estate litigation, including those for a review of a trusteeship order, for an accounting from a trustee or an attorney, naming or appointing a trustee, terminating an enduring power of attorney or securing a judgment against a trustee. The author also offers some tips to avoid litigation with the Office of the Public Trustee. Precedents attached. This paper was presented at LESA's Estate Litigation program in February 2014.
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61895.03This paper describes the “nuts and bolts” of estate-related special chambers applications, a tool regularly used by estate litigators to manage the myriad of issues that can come up in an estate litigation file. Issues discussed include requesting a hearing date, determining the best time to set an application, filing timelines, pleadings to be filed, the format of the brief required, and an idea of those times when a special chambers hearing will not work. Precedents are attached. This paper was presented at LESA's Estate Litigation program in February 2014.
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61895.02These authors offer guidance on document disclosure and questioning on a typical estate litigation file, providing a generic framework and some starting points. In particular, they look at issues central to document production like relevance and privilege, and issues related to questioning, for instance those individuals that may be questioned, and typical questioning topics. This paper was presented at LESA's Estate Litigation program in February 2014.
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61895.01In the field of wills and estates, the scope of the practice of litigators and solicitors can overlap. This paper points out and discusses the difficulty for estate solicitors in deciding where, along the road, a matter may have morphed from administrative to litigious, and what to do about it. What is the solicitor’s role in that situation? In what circumstances should one remain involved? At what point should or must one refer the matter out? This paper was presented at LESA's Estate Litigation program in February 2014.
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61911.03Citing Tataryn v Tataryn Estate, which established a new framework for assessing maintenance and support claims against an estate, this paper takes examines the interaction of estate law and family law, including matrimonial property claims, spousal support, and also support under the Family Law Act. The author reviews recent Alberta claims against estates by adult interdependent partners or common-law spouses, with a view to what is unique in an estate context. This paper was presented at LESA's Constructive Trust Claims program held in January, 2014.
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61911.02This paper explores the unique challenges for those in the position of defending an unjust enrichment claim in Alberta. It outlines the test for unjust enrichment set out in Kerr v. Baranow, and discusses the tests involved in applying those principles and defending a case relying on them. The authors flag issues for defending counsel like preliminary considerations, the definition of “joint family venture”, the fact that the law surrounding unjust enrichment is subject to judicial discretion and the efficacy of negotiating settlement of these claims. This paper was presented at LESA's Constructive Trust Claims program held in January, 2014.
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61911.01This paper provides a practical guide to bringing claims for unjust enrichment and constructive trust as a result of common-law relationships. Topics covered include: status to bring a claim, practical advice on bringing the claim and other procedural issues involving things like notices to admit facts, affidavits of records and questioning. A helpful Plaintiff’s Check List and Trial Preparation Check List are attached. This paper was presented at LESA's Constructive Trust Claims program held in January, 2014.
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61902.04This purpose of this 35-page paper is threefold: first, the author examines the most common issues with personal directives and enduring powers of attorney, as seen in the cases. Next, she outlines the steps involved in implementing an EPA or a PD. Finally, she provides suggestions for topics for discussion between practitioners and clients in planning and implementing an EPA or PD. Precedents attached. This paper was presented at LESA's Drafting Personal Directives and Enduring Powers of Attorney program held in December, 2013.
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61902.03For many, making a power of attorney or as personal directive is secondary to creating a valid will and other estate planning concerns. This paper provides a reference to the basic components of a well-drafted PA or PD and sets out additional drafting considerations for either. Its aim is to equip the practitioner to prepare or refine his or her own precedents and identify ways to go beyond the basic to help clients plan for their own unique circumstances. This paper was presented at LESA's Drafting Personal Directives and Enduring Powers of Attorney program held in December, 2013.
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61902.01The principles surrounding capacity to create a personal directive or enduring power of attorney are less developed or documented than those related to creating a valid will. This paper specifically addresses issues surrounding ensuring capacity for those making PDs and EPAs. The author examines what to do if capacity is at issue and good practice with respect to taking notes and gathering evidence to determine capacity. He offers valuable insight and tips into assessing capacity. This paper was presented at LESA's Drafting Personal Directives and Enduring Powers of Attorney program held in December, 2013.
