Legal Blog:

Holograph Will

A holograph will is referenced in section 6 of the Succession Law Reform Act. Unlike a normal will, which has specific formalities such as the signatures of two witnesses, a holograph will may be valid without any formalities if it is made wholly in the testator’s own handwriting and the testator signs it. A holograph will, however, is no different from an ordinary will in that the testator must have a sound disposing mind (i.e., have testamentary capacity to make the will) and must not be signing the will as a result of undue influence by another person. Some of these issues were dealt with in Re Lacroix Estate 2021 ONSC 2919 and Joy Estate v. McGrath, 2022 ONCA 119.

Collection Costs

A wronged plaintiff brings an action against a defendant and after three years, with money spent in costs, time wasted, indecision, and heartache, the plaintiff is finally successful and obtains a monetary judgment. The defendant, now the judgment debtor, refuses to or cannot pay. After another year or three of collection proceedings, the plaintiff, now the judgment creditor, finally collects on the judgment. However, when it seeks compensation for its significant collection costs, a judge rules that the court only has jurisdiction to allow collection costs for some very specific and limited categories, which amount to almost nothing. Worse yet, the court tells the creditor that, in effect, it should have settled for a lesser amount long ago. This is what the motion judge decided in MCAP Service Corporation v. LPIC v Mangat (third parties), a 2020 Ontario Superior Court of Justice decision.

As creditor’s counsel, this decision did not please us. We applied for and received leave to appeal it. Ultimately, the Divisional Court heard the appeal and, in 2022, rendered its decision in Lawyers’ Professional Indemnity Company v. Mangat.

Real Estate Damages

Akelius Canada Ltd. V. 2436196 Ontario Inc. 2022 Ont CA

Vendor defaulted on an agreement. Purchasers sued for damages; in particular, it claimed the capital gain that the vendor obtained when it re-sold the property two years later. The court held that, in the normal course, the starting point for the assessment of damages for breach of contract is the date of the breach. Unfortunately, that is just starting point and, depending upon the market at the time and other factors, the courts have set other dates for the assessment of damages. In this case, the court held that the assessment of damages should take place as of the breach and not two years later when vendor re-sold the property.