Toronto Estate Litigation Lawyer

Category: ESTATE LITIGATION, TRUSTEE EXECUTOR DISPUTES

How to Protect Elderly Parents from Financial Exploitation: Lessons from the Waters Estate Case
The financial exploitation of older adults can have devastating effects on the victim and their family. However, there are ways to help prevent financial elder abuse. As parents age, they often depend on others for care, companionship, and financial help. Unfortunately, this need for assistance can create opportunities for unscrupulous people to manipulate, unduly influence, or outright steal from our loved ones. The Ontario Superior Court decision The Estate of William Robert Waters v. Gillian Henry et al., 2024 ONSC 4190 (“Waters”), demonstrates that even a sophisticated person can leave their beneficiaries with confusion and litigation after they pass away.

What Is Financial Elder Abuse?

Financial elder abuse happens when someone without authorization, illegally or improperly, uses or misappropriates an elderly person’s money, property, or assets. In Ontario, such conduct can trigger civil liability, criminal charges, or intervention by the Ontario Office of the Public Guardian and Trustee (OPGT).

Financial elder abuse can occur in any of the following ways:
- Pressuring a senior to change their will or make large gifts
- Misusing a Power of Attorney to withdraw or transfer funds
- Adding oneself as a joint owner on accounts or property
- Forging signatures, intercepting mail, or taking control of access to bank accounts
- Manipulating or isolating a vulnerable person to control their finances
Case Spotlight: The Estate of William Robert Waters v. Gillian Henry (2024 ONSC 4190)

William Waters (“William”) was an 88-year-old philanthropist, businessman, and academic who left a multi-million-dollar estate. The dispute before the court concerned over $30 million that William had transferred to his personal care worker, Gillian Henry (“Gillian”). The money was given by William to Gillian over the course of a decade-long secret intimate relationship. After William’s death, his estate trustees claimed the money was meant to be invested on William’s behalf, whereas Gillian insisted it was all a gift. Without William’s evidence, the Court had to infer his intent. Under Ontario law, when a person makes a gratuitous transfer (money given without receiving anything in return) to a non-family member, there is a presumption of resulting trust. Gillian was required to prove, on a balance of probabilities, that William gifted her the money.

Although there were some exceptions, the Court held that William, who was intelligent and in full control of his finances, intended to gift most of the money to Gillian. The evidence showed:
- William personally approved each transfer, signed every cheque, and reviewed every VISA bill, including millions in personal spending by Gillian.
- When William intended a transaction to be a loan, he used legal counsel and paperwork. When he intended a gift, he did not document it.
- Lawyers and accountants warned William to secure or document his interests, yet he declined, showing a conscious decision to part with the money.
The decision of Waters Estate underscores that clarity, documentation, and oversight are essential. Even when there’s no evidence of exploitation, a lack of formality and clarity can leave loved ones entangled in years of expensive litigation.

Ten Ways to Help Prevent Financial Elder Abuse
1. Have a properly drafted (by a lawyer, preferably) Power of Attorney for Property and Personal Care.
2. Choose trustworthy Attorneys for Property and Personal Care, not just relatives, but people who are responsible, transparent, and willing to be held accountable.
3. Use dual decision-making or periodic accounting so no one has unchecked control.
4. Avoid joint bank accounts unless truly necessary; they can create ownership confusion after death.
5. Review wills and beneficiary designations regularly, especially after major life changes.
6. Maintain social connections to prevent isolation, a major risk factor for abuse.
7. Watch for warning signs such as unexplained withdrawals, secrecy, sudden dependence on a new person or new friend.
8. Encourage professional oversight from lawyers, accountants, or financial advisors.
9. Document gifts and loans clearly. Written evidence of intent avoids later disputes.
10. Act immediately if something feels off; contact a lawyer or the OPGT before funds disappear.
Frequently Asked Questions (FAQ)
1. What does the Waters Estate case teach about elder financial relationships?
It shows that even a capable person can create legal chaos if their financial generosity isn’t documented. Courts will presume a resulting trust unless clear evidence proves a gift was intended.
1. How can a family member distinguish between a gift and financial exploitation?
Intent and documentation matter. A genuine gift is voluntary, informed, and properly recorded. Exploitation involves pressure, secrecy, or misuse of authority under a Power of Attorney.
1. If my parent gives a caregiver money, can the estate recover it later?
Possibly. If there’s no clear evidence it was meant as a gift, Ontario law presumes the money was held in trust for the parent or estate. The recipient must prove it was a gift.
1. What legal duties apply to someone acting under a Power of Attorney?
A Power of Attorney owes a fiduciary duty, which is the highest standard of honesty and loyalty. They must act only in the grantor’s best interests, keep detailed records, and never mix their own finances with the parent’s.
1. What if the Power of Attorney misuses funds or gifts money to themselves?
That is a breach of fiduciary duty and the court can order repayment, freeze accounts, or remove the Power of Attorney.
1. Can financial elder abuse also lead to criminal charges?
Yes. Theft, fraud, forgery, and breach of trust are all Criminal Code offences. Civil remedies and criminal prosecution can proceed simultaneously.
1. How can large gifts be safely made to caregivers or family members?
Always seek independent legal advice and written confirmation of intent. Clear letters, receipts, or agreements can prevent future disputes or accusations of undue influence.
1. Can someone challenge a will or gift made late in life?
Yes. Family members may contest transactions or will changes based on undue influence, lack of capacity, or resulting trust. Medical evidence and lawyer’s notes often become central at trial.
1. What should you do if you suspect financial abuse?
Speak privately with your parent, document your concerns, and contact an estate litigation lawyer immediately. You can also report suspected abuse to the Office of the Public Guardian and Trustee or police.

How Can an Estate Litigation Lawyer Help Prevent or Resolve Abuse?
1. Draft proper Powers of Attorney and wills.
2. Investigate suspicious transfers.
3. Seek court orders for accounting or removal of an attorney.
4. Recover funds or property.
5. Advise on mediation to preserve family relationships.
Final Takeaway

The Waters Estate case is a cautionary tale. Even the most intelligent and well-intentioned individuals can cause financial turmoil through informal generosity. Whether managing a parent’s money or providing care, transparency, independent advice, and documentation are the best protections against both abuse and misunderstanding. Protecting aging parents isn’t just about preserving their assets, it’s also about preserving their dignity, autonomy, and trust.

Need Help Protecting a Loved One or an Estate?

If you suspect financial abuse or want to ensure your family’s estate plan is secure, contact Derfel Estate Law for confidential guidance.
November 3, 2025
Small Estates Also Matter: How Ontario’s New Increased $50,000 Small Claims Court Limit is a Game Changer for Small Estate Disputes
As of October 1, 2025, Ontario increased the monetary jurisdiction of the Small Claims Court from $35,000.00 to $50,000.00. This long-awaited reform increases access to justice for countless Ontarians involved in civil disputes.

This change allows more families, beneficiaries, and professionals to pursue estate-related financial claims in a faster, simpler, and more affordable forum. For many, it bridges the gap between doing nothing (because Superior Court is too expensive) and seeking fair compensation. However, there are limitations and trade-offs that should be considered before proceeding in Small Claims Court.

A Step Toward Greater Access to Justice

A claim that may have been prohibitively expensive to bring in Superior Court may now be viable in Small Claims Court. Smaller estate beneficiary disputes, estate debts, or solicitor negligence claims can be brought before the court, without having to potentially spend tens of thousands of dollars in legal fees.

Some of the benefits:
1. Small Claims Court offers streamlined rules, plain-language forms, and lower costs.
2. Filing fees and disbursements are modest compared to the Ontario Superior Court.
3. You can hire a paralegal or represent yourself, further reducing legal expenses.
These features make justice more accessible to ordinary Ontarians, especially in estate cases where beneficiaries or creditors are fighting over modest but meaningful sums, nonetheless.

Access Comes with Limits

Without doubt, the increased limit is a positive change; however, litigants still need to be mindful of the following:
1. Even if your claim is worth more, if you want to proceed in Small Claims Court, you must limit your claim to no more than $50,000.00.
2. If your claim is for more than $50,000.00, to proceed in Small Claims Court, you must abandon the excess or bring your claim in Superior Court, where the process is often slower, costlier, and much more procedurally complex.
3. Legal costs in Small Claims are capped. Even if you win, you’ll recover far less of your fees than you would in Superior Court.
A Positive Step, But Still Not a Perfect System

The Small Claims Court is faster and cheaper, however:
1. Self-represented parties still face challenges navigating the process effectively. The process may be simpler, but at the end of the day, it’s still court.
2. Court backlogs and scheduling delays continue to affect timelines in some regions, particularly in Toronto.
3. Even if you succeed, enforcing a judgment or settlement can be costly, complicated and uncertain when the other party refuses to pay. Collecting and enforcing a judgment or settlement can become its own litigation.
4. Complex estate matters still require Superior Court intervention, where costs can quickly escalate beyond reach.
Case Spotlight: Swift-Arabski v Staats, 2013 CanLII 41982 (ON SCSM)

Two daughters sued their late mother’s lawyer for failing to sever joint tenancy on two properties, which caused assets to pass outside the estate.

The court found the lawyer negligent for not following clear instructions, awarding $7,069.38 in damages, mainly covering the cost of correcting the mistake.

This case demonstrates how beneficiaries can use Small Claims Court for estate-related negligence or monetary loss, as long as the claim is within the financial limit and doesn’t involve complex issues.

Frequently Asked Questions About Small Claims Court and Estate Disputes in Ontario
1. Why is the Small Claims Court increase to $50,000.00 a game-changer?
Because it allows many smaller estate-related disputes to be handled quickly and affordably, without the full weight of Superior Court procedure.
1. Can I challenge a will in Small Claims Court?
No. Only the Superior Court of Justice can hear will challenges or determine a will’s validity.
1. What types of estate cases fit in Small Claims Court?
Simple monetary claims such as debts, unpaid inheritances, or breaches of simple agreements (provided they are within or limited to $50,000).
1. Who do I sue?
The estate trustee (executor) must be named as the defendant. You cannot sue “the estate” directly.
1. Can I hire a paralegal or self-represent?
Yes. Paralegals are licensed for Small Claims matters. Also, many people represent themselves.
1. What if I lose my case?
You may have to pay limited costs that usually amount to a small percentage of the claim. It’s far less risky than losing in Superior Court.
1. Can I recover my legal costs if I win?
Only partially. Small Claims cost awards are capped and won’t fully reimburse your legal expenses.
1. Can I appeal a decision?
Yes, but only a lawyer can represent you at the appeal level. You can represent yourself but do so at your own peril.

At Derfel Estate Law, we help clients determine whether their estate dispute belongs in Small Claims Court or the Superior Court of Justice, and we work with both lawyers and paralegals to deliver cost-effective solutions.
October 22, 2025
Court Awards Estate Trustee Costs and Dismisses Baseless Allegations of Misconduct

In Forgione v. Alonzi, 2025 ONSC 4051 (CanLII), a dispute arose between family members regarding the administration of the deceased’s estate. The deceased appointed his granddaughter as his attorney for property and personal care, as well as the estate trustee. The deceased’s (the Applicants) children, who were also beneficiaries of the estate, alleged mismanagement, theft, and fraud against the granddaughter. The granddaughter also provided extensive care for the deceased during his final years. The applicants disputed the granddaughter’s compensation and actions as estate trustee and attorney for property. The court awarded the respondent $537,922.25 in compensation as estate trustee and attorney for property. However, the court offset $100,000.00 of the granddaughter’s compensation because of recordkeeping issues.

The court found that the applicants engaged in a relentless and baseless campaign of allegations against the respondent, including claims of theft, fraud, and mismanagement, which were unproven. The respondent provided extraordinary care for the deceased, and her actions as estate trustee and attorney for property were largely appropriate, apart from recordkeeping issues that necessitated the passing of accounts. The court held that the respondent was entitled to costs on a substantial indemnity basis due to the Applicants’ reprehensible conduct. However, these costs were to be paid by the estate, as the passing of accounts was necessary for proper estate administration. The court, however, declined to award the granddaughter pre-judgment interest. The court reasoned that the Respondent’s failure to maintain proper records caused delays in the administration of the estate. The court determined that the respondent should bear the opportunity costs of the delay.

The court recognized the granddaughter’s contributions to the deceased’s care and her overall appropriate conduct in managing the estate. Although compensation was reduced due to deficiencies in recordkeeping, the court rejected the Applicants’ unfounded allegations. The decision confirms the importance of accurate recordkeeping by a trustee and power of attorney, even in the face of personal sacrifice and family conflict. Ultimately, the court sought a balanced outcome by compensating the respondent for her efforts, penalizing her for administrative shortcomings, and ensuring the estate bore the financial burden of necessary litigation.

Please reach out to our Estate Litigation Lawyers if you have any questions regarding the administration of an estate. Also, if you are involved in any estate litigation, our lawyers are here to discuss your options.

July 31, 2025
BC Court Rules that Transfer of Estate Assets to Alter Ego Trust is Not Fraudulent
A recent decision from the British Columbia Supreme Court, Kramer v Kramer,^[1]considered whether assets transferred to an alter ego trust should be returned to the deceased’s estate as a fraudulent conveyance to satisfy a wills variation claim.

British Columbia is unique in Canada for the wills variation provision in the Wills, Estates and Succession Act (WESA). Section 60 of the WESA allows a court to vary a testator’s Will upon application and order provisions that it considers “adequate, just and equitable in the circumstances” for the support of the testator’s spouse or children.^[2]If there are insufficient assets in the estate, applicants can apply to declare conveyances made during the testator’s lifetime fraudulent under the Fraudulent Conveyances Act (FCA)to return the assets to the estate.^[3]

In this case, Justice Young rejected a beneficiary’s attempt to obtain a larger share of her mother’s estate and declared that the transfer of assets to an alter ego trust during the deceased’s lifetime was not fraudulent.

The Facts

This case revolves around the estate of Clara Kramer. Clara died on July 14, 2017. Clara executed a Will on May 4, 2009, and a Codicil on March 31, 2010, which named her only children, Karen and Leanne, as the executors and sole beneficiaries of her estate. Leanne also had power of attorney over Clara’s affairs during her lifetime.

On May 31, 2015, Leanne used her authority under the power of attorney to transfer most of Clara’s assets into the Kramer Alter Ego Trust (the “Trust”), appointing herself and two solicitors as trustees. An “alter ego trust” is an estate planning tool that allows you to transfer your assets to a trust with yourself as both the trustee and beneficiary. This allows you to hold and manage the property for your own benefit. You can also provide for who gets the assets after your death, making these trusts a common form of will substitutes. In this case, the distribution of assets in the Trust mirrored the terms of the Will and Codicil. Karen was not aware of the Trust until after Clara’s death.

On March 18, 2019, Karen brought an action to vary Clara’s Will under section 60 of the WESA and for an order under section 1 of the FCA that the transfer of property to the Trust was fraudulent and void. If the order was granted, then the assets would form part of Clara’s estate. The defendants applied for summary judgment to dismiss Karen’s claim.

Issues

The Court considered two main issues:
1. Did the plaintiff have standing under the FCA as a creditor?
2. Were estate assets transferred to the Trust with fraudulent intent?
Karen maintained that the conveyance of the estate assets to the Trust was fraudulent and that the Trust was created with the intention to prevent her from collecting her debt.

The defendants denied this allegation. Firstly, they maintained that Karen was never a creditor of Clara. Even if she was, she had been paid what was owed to her before the property was transferred to the Trust. Moreover, the purpose of the Trust was not to place Clara’s assets out of the reach of creditors and did not constitute a fraudulent conveyance.

Does the Plaintiff Have Standing Under the FCA as a Creditor?

Section 1 of the FCA states that a conveyance made to delay, hinder, or defraud creditors via a disposition of property is void.^[4] However, for this provision to apply, Karen must prove that she was a creditor of Clara’s and had standing to bring the claim under the FCA.

Justice Young found that making a claim under section 60 of the WESA does not make the applicant a creditor under the FCA.^[5]As such, Karen’s claim as a creditor was based on a series of loans totalling $164,000 that she gave to Clara in September and November 1998. In 1998, Clara had contacted Karen asking for a loan from the proceeds of the sale of Karen’s condo. Karen agreed and transferred the funds to another account of hers that Clara had access to. Clara withdrew the funds and deposited them into one of her corporate accounts. Due to Karen’s evidence that she thought that she was personally loaning her mother the money and Clara’s tendency to treat corporate accounts like personal accounts, the Court determined that the loan was a personal loan.^[6]

However, the loan had already been repaid. On June 20, 2012, Clara contacted her attorneys and insisted that she owed Karen $300,000, though she could not recall the particulars of the loan, including whether it was made to her or to one of her companies, the principal amount, or the interest rate.^[7]Clara’s attorney suggested that they transfer $200,000 from a sale of one of Clara’s properties to Karen as either an advance on her inheritance or as a repayment of the loan. If Karen established that Clara owed her more than $200,000, then Clara would agree to pay the outstanding balance.^[8]On June 25, 2012, the agreement was executed, and the money was wired to Karen’s account. Karen never provided any further evidence of the loan.

The Court determined that, as Karen had only established the principal loan amount of $164,000 and did not establish that there was any agreement for interest, her loan was more than repaid and she was not a creditor at the time of the transfer of the assets to the trust.^[9]As she was not a creditor at the time of the conveyance, she did not have standing to assert a claim under the FCA.

Were the Assets Transferred to the Trust with Fraudulent Intent?

Justice Young explained that the test for a “fraudulent conveyance” under the FCA was whether the transfer of assets was done with the intent of putting assets out of the reach of creditors.^[10]A trust created with the effect of putting assets out of reach of creditors, but not the intent, is insufficient.^[11]

Justice Young found no indication of fraudulent intent in this case. Instead, the Trust was created for estate planning purposes on the advice of Clara’s counsel. Justice Young concluded that the Trust was created:

… for legitimate estate planning purposes to maximize the value of Clara Kramer’s estate by avoiding substantial probate fees that would have been payable on the gross value of the North Property and the South Property, and to ensure Clara Kramer’s estate could be administrated in an efficient, cost-effective, non-confrontational manner after her death. There is no evidence on which to draw an inference of fraudulent intent.^[12]

Justice Young also considered the fact that there were provisions in the Trust to pay out estate liabilities, consisting of over $13 million in capital gains, deferred property tax, legal costs, personal loans, and other expenses.^[13]

Conclusions

While this case was decided in British Columbia under their provincial legislation, it has clear implications for testators in Ontario, given the similar legislation governing fraudulent conveyances in each province.^[14]

For testators, Kramer affirms that creating an alter ego trust to avoid probate fees and ensure effective estate administration of your estate is a valid method of estate planning, so long as there is no intent to delay or hinder creditors which could trigger fraudulent conveyances legislation. Moreover, though not required, it is good practice to have trust provisions which provide for paying out the liabilities of the estate to disprove any fraudulent intent.

Contact Derfel Estate Law for Estate Administration and Trustee Disputes

At Derfel Estate Law, our estate litigation lawyers work with clients in all aspects of estate disputes, including trustee and executor issues and passing of accounts. We provide personalized assistance to beneficiaries, guardians, executors, trustees, and any other party involved in estate matters. If you are wondering how we can help you, please don’t hesitate to reach out online or call 416-847-3580 to speak with an estate lawyer who will work tirelessly to resolve your dispute.

This blog was co-authored by David Derfel and law student, Leslie Haddock.

^[1] 2023 BCSC 116 [Kramer].

^[2]Wills, Estates and Succession Act, SBC 2009, ch 13, s 60 [WESA].

^[3]Fraudulent Conveyances Act, RSBC 1996, c 163, s 1(a) [FCA].

^[4] Ibid.

^[5] Kramer, supra note 1at para 41.

^[6] Ibid at para 70.

^[7] Ibid at para 85.

^[8] Ibid at para 88.

^[9] Ibid at para 90.

^[10] Ibid at para 93.

^[11] Ibid at para 94.

^[12] Ibid at para 113.

^[13] Ibid at para 9.

^[14] In Ontario’s Fraudulent Conveyances Act , RRO 1990, ch F.29, s 2 states that any conveyances made with the intention to defeat, hinder, delay or defraud creditors is void, similar to s 1(a) of British Columbia’s FCA.
August 30, 2023
Mother Seeks to Remove One Son as Trustee for Estate of Her Other Son
When it comes to estate litigation, it is not uncommon for beneficiaries of an estate to have disputes with an estate trustee over how they manage an estate or whether the trustee is violating their fiduciary duty. These disputes can also occur between beneficiaries and the executor of an estate. Serving as an executor or a trustee is a significant responsibility, and not everyone might appreciate the obligations it carries or be able to manage those responsibilities properly. Fortunately, there are avenues that beneficiaries can pursue if they feel that a trustee is not acting within their duties. A recent decision from the Ontario Superior Court of Justice looks at how an estate trustee might act outside their responsibilities and how a beneficiary can remove them from that role.

Son dies intestate and estate passes to mother

The applicant in Letourneau v. Summers as Estate Trustee was the sole beneficiary of her son’s estate. Her other son was the estate’s trustee. The mother brought an application asking the court to remove her son as trustee.

The applicant was 82 years old when her son, Bernold, died. As Bernold did not have a spouse or children when he died, the applicant was the only person entitled to a share of his estate under the Succession Law Reform Act. Due to the applicant’s age and poor health, the applicant agreed that the respondent, her son Arnold, should act as the trustee for the estate.

Trustee ignored mother’s request to sell estate house

The mother brought an application to the court based on serious allegations regarding Arnold’s performance as estate trustee. One of the primary points of contention was the house left behind by Bernold. The mother asked for the house to be liquidated. However, he failed to do so and told the Court that he had paid off the debts associated with the home. These included overdue property taxes, the mortgage, Bernold’s credit card debts, and improvements to the property (including a new roof).

The applicant told the Court that she was not consulted about any of these decisions and didn’t know whether Arnold’s own funds were used to pay for them or whether the funds came from the estate.

Trustee rented estate property against mother’s wishes, no documentation to account for rental payments

Arnold advised the Court that he had initially planned to purchase the home but determined he could not afford to do so. It was only at this point that he agreed to list it for sale. However, the applicant took issue with Arnold’s listing the property without her knowledge and input.

Furthermore, the applicant stated that Arnold delayed selling the home because he unilaterally decided to rent it to a friend. This was despite the applicant telling him she did not want the house rented and wished for it to be sold immediately. Much like the house improvements and estate debts, Arnold did not have any documentation to account for the rental of the house, and the applicant was unaware of where the money collected for rent ultimately went.

Regarding the property inside the house, the applicant alleged that Arnold removed everything from the home and put it into storage without providing her with any accounting of what was removed.

Courts will not interfere with a testator’s choice of trustee unless necessary

The Court explained that the principles it must consider when asked to remove an estate trustee are as follows:

The Court will not lightly interfere with a testator’s choice of trustee;

Clear evidence is required that the trustee’s removal is necessary;

The Court’s primary consideration is the welfare of the estate or trust’s beneficiaries; and

The estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the estate or trust.

Son’s conduct endangered the administration of the estate and justified his removal as trustee

Ultimately, the applicant said she would not have agreed with Arnold acting as estate trustee if she knew the estate would be handled in such a manner. She advised the Court that she felt Arnold acted in his own interest and, as a result, she no longer trusted him to exercise his fiduciary duty to the estate. Arnold argued that any conflict that may have existed was gone since he could not purchase the home, although he acknowledged that he should provide an accounting for his time in that role.

The Court wrote that it was not necessary to determine the details of the facts the parties disagreed upon but that, in general, it believed the evidence of the applicant. It noted that Bernold did not ask for his brother to be named trustee; instead, Arnold was brought into that role following Bernold’s death. The Court further found that even just the conduct admitted to by Arnold provided sufficient evidence that his behaviour endangered the administration of the estate. The applicant’s welfare was also determined to be best served by the Court removing her son as trustee.

As a result of these findings, the Court removed Arnold as the estate trustee and replaced him with another of Bernold’s siblings.

For Guidance on Executor or Trustee Removal, Contact Derfel Estate Law in Toronto

At Derfel Estate Law, our estate litigation lawyers regularly work with clients on either side of disputes regarding an executor or trustee’s ability to perform their duties. We understand that family dynamics can often complicate these matters, and we help ensure the interests of our clients and their loved ones are protected throughout the process. Our knowledgeable team represents clients in a variety of disputes, including executor removals, passing of accounts, and Will challenges. Please contact us online or by phone at 416-847-3580 to discuss your estate litigation matter today.
November 17, 2022