RESULTS

The overwhelming majority of litigation disputes end by settlement prior to a trial or application hearing. Advocacy is therefore something best done throughout the process, to give the client the best opportunity to achieve a favourable outcome.

But where settlement attempts fail, or a hearing on the issues is otherwise necessary, it is important that your lawyer has a record of strong, effective advocacy. A good strategy is one that provides options. Our approach is two-fold: on the one hand, be aware of the opportunities to resolve a dispute through the settlement track, on the other hand, prepare for trial.

Again, most cases do settle. It is never too soon, or too late, to consider settlement: whatever a client can live with is, by definition, a good settlement. However, for the minority of cases where a settlement does not happen, we are ready to go to trial. Effective trial advocacy requires prudent planning, from the very beginning of a legal proceeding, for the possibility of a trial.

Settlement of a 20-year estate administration and professional negligence saga

Our client was one of two children whose parents died in a tragic car accident. Hard-working immigrants, his parents had arrived in Canada penniless. They went on to amass substantial business and real estate holdings. Compounding the tragedy of their deaths, their estates were mismanaged and the business and real estate assets depreciated, burned down, and wasted. As a result, our client, 13 years old when his parents died, would have received very little from his parents’ life work without litigation. After nine years of complex and hard fought litigation, on the eve of trial, a settlement resulted.

Motions court applies Supreme Court of Canada’s Hryniak decision to dependant support application

Our client was a loving spouse who lived with her common law husband for 19 years. She brought a dependant support application, and the estate trustees refused to admit that our client had lived with the deceased and was a dependant spouse. A motions court applied the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, to determine, on a contested basis but without a trial, whether our client qualified as a dependant and a spouse. The court stated that a trial was not required to justly and fairly resolve these issues and declared in favour of our client. Shortly after that, a settlement resulted with our client receiving a house and about $1 million from her common-law husband’s assets.

Ex parte termination and removal of abusive guardianship

Our client was a gentleman who had suffered a serious brain injury in a motor vehicle accident. A guardian of property and for personal care had been appointed to administer settlement funds from the accident and to see to our client’s rehabilitation. Our client regained capacity. The guardian – who controlled the settlement proceeds – reduced our client’s access to rehabilitation therapies and would not return to court to terminate the guardianship. Instead, the guardian used her position of control to abuse this gentleman and isolate him. We brought an urgent motion to terminate the guardianship ex parte. The court accepted the urgency of the motion, declared our client capable, terminated the guardianship, and stated that this was a circumstance where the Court could dispense with notice. The Court granted an order allowing our client to secure control of his property, remove himself to safer living arrangements, and take control of his own future.

Gridlocked estate trustees passed over in contested application

Our client was one of two sisters named estate trustee of their father’s estate. The estate had been gridlocked for 3 years. We brought an application to pass over both sisters in favour of a professional estate trustee. The application was contested by the respondent sister and the third sibling. Our client was successful at the hearing of the application. The court found that the estate was put at risk by the prolonged history of animosity between the sisters, their estrangement, and the failure of both sisters to move matters forward in a timely manner. The named estate trustees were passed over and a professional estate trustee appointed.

Our Team

Dedicated Lawyers, Proven Results

A. Sean Graham

Partner

Christopher M.B.

Partner

Madonna Gutierrez

Law Clerk and Office Manager

Dying mother’s capable last wish to die with her son given effect in contested hearing

We represented a son trying to honor his mother’s wish to spend her last days in his home. The issue was opposed by other children, who argued that it would be expensive to provide palliative care at his home and that their mother would have wanted to die in a retirement home so as to maximize funds to be left to her estate. The Board found that the mother had expressed a capable wish and gave effect to that last wish: the mother was able to die in dignity in her son’s home, surrounded by family.

Will found valid despite suspicious circumstances

A father died with a Will leaving most of the estate to his one son and very little to his five daughters. Our client was the son. The daughters challenged the Will on the basis of undue influence and lack of testamentary capacity. At trial, our client was successful: the court found that despite suspicious circumstances surrounding the making of the Will, the Will was duly executed, there was testamentary capacity, and there was no undue influence. The Will represented the father’s true wishes – despite the fact that it was not what the sisters wanted, anticipated or thought was fair. Where there is testamentary capacity, the legitimate and appropriate outcome may seem unreasonable or even cruel to survivors – but that is not the test. A testator has the right to treat hopeful beneficiaries unjustly.

Contested guardianship

Our client was a devoted sister seeking guardianship of property and person of her disabled adult sister. The family was divided into two camps: one camp arguing that the disabled sister was best left in her current living conditions, and the other camp wanting the sister to move into our client’s household to live with her family. The application went to trial. Our client was successful: the court appointed her as guardian to take care of her sister.

Court passes accounts of professional estate trustee in the face of serious, but unfounded, accusations

Our client was a chartered accountant who had agreed to act as estate trustee. We represented the estate trustee in his application to pass accounts. An objector had made serious allegations, including fraud, misrepresentation and breach of trust. After a full-scale trial, the court passed the estate trustee’s accounts and found that the estate trustee had conducted his duties in a thorough and professional manner, and in spite of constant criticism from the objector during the period of administration.

Unmarried dependant long-term spouse awarded lifelong occupancy and monthly allowance

Our client was an elderly man claiming dependant support from the estate of his unmarried spouse. The spouse had died without Will and no close family, and her estate was to escheat to the government of Ontario. We acted in the dependant support application. Ontario’s Public Guardian and Trustee contested the claim and a trial resulted. Our client was successful. The court found that our client qualified as a spouse and a dependant and ordered support from the estate. Our client was granted a monthly allowance and the right to occupy the deceased’s house.

A. Sean Graham - Partner

Sean Graham was called to the Bar in 1999, having obtained his Bachelor of Law degree from the University of Western Ontario. Sean has practiced in the field of estate, trust and capacity litigation for over sixteen years.

Sean acts for both institutional and individual clients in matters involving estates and trusts, from complex estates with international corporate holdings to simple estates with a house and a bank account. Sean is frequently retained as litigation counsel in sensitive matters.

Sean Graham also acts as a mediator in estate, trust or guardianship matters.

Sean speaks frequently to groups of fellow lawyers as well as law students and clerks in the Continuing Legal Education setting. He is an enthusiastic legal writer, having co-authored An Introduction to Canadian Law – Ontario Guardianship Law, and published numerous articles in various Canadian and international estate and trust publications.

Christopher M.B. Graham – Partner

Chris was called to the Bar in 2002 after graduating from Queen’s University Faculty of Law.

Chris started his career practicing corporate law at a national law firm. Since 2007, he has focused exclusively in estate, trust and capacity litigation.

His experience includes acting in will challenges, dependant support applications, passing of accounts, trustee removal proceedings, and capacity litigation involving guardianships, powers of attorneys and Absentee Act applications.

Chris has advised family members and institutional guardians in all manner of contested and uncontested guardianship proceedings, from basic applications to manage an elderly parent’s assets, to sensitive guardianships involving urgent safety issues and guardianships requiring management plans for personal injury settlement or damage award proceeds.

Madonna Gutierrez
Law Clerk and Office Manager

Following graduating in 2013 from Herzing College, Toronto, with Dean’s List Honours from the Law Clerk Studies program, Madonna joined us as our law clerk and office manager.

Madonna is closely involved in various aspects of our practice, including the preparation of legal materials as well as the overall office organization.

She also interacts with clients and other professionals on whom the firm relies to help their clients. She is a vital member of our team.