Articles for Lawyers

We publish widely for lawyers. Much of that material is copyrighted, and cannot be placed on our website. We are working on unlocking some of those restrictions, and look forward to the ability to post a variety of material in the future.

John Poyser is the author of a textbook for Thomson Carswell entitled Capacity and Undue Influence and the co-author of a textbook Taxation of Trusts and Estates, a Practitioner’s Guide, published annually since 2004. For copies visit the Carswell website. He is also Editor-in-Chief of the National Concordance, a compendium of the laws across Canada published on line by the Wills, Estates and Trusts Section of the Canadian Bar Association. If you are a member of the CBA Section and want to access it, go to the Canadian Bar Association website.

Access is available here to the following material:

Plain Language and the Danger of Legalese*

Legalese can actually defeat a will. That happened in Franks v. Sinclair.1 The will-maker was a mother and had two adult children, a son and a daughter. The son was a lawyer, and he was in tight financial straits. The … Continue reading

The Doctrine of Unconscionable Procurement*

An inter vivos gift can be attacked and set aside on a variety of grounds, some common and some rare. One of the rarer grounds is the “doctrine of unconscionable procurement.” The doctrine can be summarized as follows: A freestanding … Continue reading

Testamentary Capacity Required on Date Will is Executed*

A will is valid only if the maker has testamentary capacity. What if the will-maker displays that capacity at the beginning of the process with his or her lawyer, when instructions are given, but loses capacity by the end of … Continue reading

Will Planning: Asking the “Bounty Question”*

Lawyers are expected to test clients for capacity when engaged to make a will. Typically, that involves asking questions that test powers of recollection. Those questions revolve around the extent of the client’s property (“what do you own?”) and family … Continue reading

Will Planning: The Use of “Tear-Away Wills”*

Capacity is task specific. A complex will requires a simply higher capacity level on the part of the maker than a simple will. That can be an important consideration where a will-maker is tottering on the edge of incapacity. Some … Continue reading

Capacity Required for Codicil*

The test for capacity for a will is taught at law school and is well-known to practicing lawyers. Do the rules change when it is not a will but a codicil that is under consideration? The following is a brief … Continue reading

Attacking Wills: Fraud as a Species of Undue Influence*

Lawyers generally have a good working knowledge on how and when to attack a will based on testamentary undue influence. Less known is how and when to attack a will based on testamentary fraud, a sister doctrine. The following sets … Continue reading

Child in the UK is Estate Planning Challenge

David Smith is proud of his son, Bob.  His son is a banker, and a successful one.  So successful that he ended up living in London, England with a job at an international bank. That creates an estate planning problem … Continue reading

Second Will Useful for Assets in Different Jurisdiction

Hugh MacDonald immigrated to Canada from England some fifty years ago.  His English relatives keep dying off.  None of them had children, and he has inherited a substantial amount of money in the UK.  He has left it there.  It … Continue reading

Charitable Gifts by Estates and Trusts

EXCERPT FROM TAXATION OF TRUSTS:  CHARITABLE GIFTS BY ESTATES AND TRUSTS      __________________________________________________________________   Reprinted from Chapter 3 “Taxation of Trusts”, s. 3.4.1 “Summary”, p. 191, in Taxation of Trusts and Estates: A Practitioner’s Guide 2011, by Larry H. Frostiak, … Continue reading

Estates & Trusts Decisions by John Delaney & Ted Crane

Gill v. RSPCA In The High Court of Justice Chancery Division Mr. James H. Allen, Q.C. (Sitting as a Deputy Judge of the High Court) Decision delivered: October 19, 2009 This case, from England, has become the subject of assorted … Continue reading

Estates & Trusts Decisions by John Delaney & Ted Crane

Garron Family Trust (Trustee of) v. R. 2009 TCC 450 Tax Court of Canada Judgment: September 10, 2009 The Tax Court of Canada considered the issue of trust residence in a case that involved a complex reorganization of a holding … Continue reading

Wills & Estates Decisions by John Delaney & Ted Crane

By John Delaney and Ted Crane Pecore v. Pecore, 2007 SCC 17 Madsen Estate v. Saylor, 2007 SCC 18 Supreme Court of Canada Decisions delivered: May 3, 2007 The Supreme Court of Canada has recently released its decisions in the … Continue reading

Practice Note: On What Date Does a Testator Need Testamentary Capacity? by John E. S. Poyser & Daniel Watts*

When does the client have to have testamentary capacity during the will making process? The law dealing with the due execution of a valid last will and testament is clear in providing that the testator must have testamentary capacity as … Continue reading