Daniel J. Dochylo  


Executive Summary

Daniel Dochylo is a partner at the Toronto office of Borden Ladner Gervais LLP. Daniel is National Chair of our Estate, Trust and Family Litigation Focus Group. He focuses his practice on estates and trusts litigation, including will challenges and interpretations, passings of accounts, removals of trustees, dependants' relief, guardianships, and other cases involving trusts, powers of attorney and estate bonds. He also represents clients in contentious multi-jurisdictional administrations and financial institutions in disputes involving aging investors. Daniel also acts as a mediator of estates and trusts disputes, and has expertise in insurance defence, commercial litigation and family law. Daniel is certified as a Specialist in Estates and Trusts Law by The Law Society of Upper Canada. With respect to mediation, he has been granted the designation of Associate of the Chartered Institute of Arbitrators (ACIArb).

Representative Work

  • Acted for individuals, corporations, trust companies, charitable foundations and bonding companies in a wide variety of estates, trusts, insurance, commercial and family matters in the lower courts and on appeal.
  • Acted for trust company in responding to and refuting allegation of breach of duty in context of contested request for interim distribution where Estate a party to multiple pieces of litigation: Kearns v. Kearns et al, April (2017), Court File No. 05-111/15 (ONSJ)
  • Successfully acted for ultimate beneficiary in having terms of Will trusts interpreted to find there was “ascertainable standard” for encroachment power and duty of even hand could be applied, so that trusts’ capital not deemed part of estate of initial U.S. beneficiary for U.S. tax purposes: Goodall v. Schwobel (2014), ONSC 3993.
  • Acted for estate trustee in having foreign heirs of deceased identified and Will interpreted as regards devolution on partial intestacy to such heirs: Kapousouzian Estate v. Spiak (2014), ONSC 2355.
  • Appeal of decision enforcing settlement and declining to award pre-judgment interest; successful in reversing latter award: Dick v. McKinnon (2014), ONCA 784.
  • Acted for trust company, as proposed co-guardian, regarding approval of Management Plan with limitations of liability and ability of each co-guardian to engage independent counsel and obtain full indemnity for legal fees and increased care and management fee: Abrams v. Abrams et al (August 2011), Court File No. 03-003/08 (OSCJ).
  • Acted for Office of The Children's Lawyer in rectifying a $22-million testamentary trust, thereby preserving its benefit and ensuring that $17 million in gifts, which would otherwise have failed, did not fall into residue. Re Estate of John Johannes Jacobus Kaptyn (August 6, 2010), Court File No. 05-40/07 (OSCJ).
  • Acted for executrix to establish right of adopted child to inherit from next-of-kin of adoptive parent; first case on this issue: Kinneberg, as Executor of Estate of Evans v. Bradfield and the PGT, as Estate Trustee of the Estate of Rich (April 2010), Court File No. 01-0046/07 (OSCJ).
  • Acted for applicant in obtaining order for assessment of capacity in guardianship proceedings under Substitute Decisions Act: Kischer v. Kischer et al (January 2009), Court File No. 03-96/08 (OSCJ).
  • Acted for hospital foundation in seeking removal of executor over conduct of estate administration: St. Joseph's Health Care Centre v. Dzwiekowski (2007), CarswellOnt 7642; OJ No. 2619 (SCJ).
  • Acted for trust company, as estate trustee, on application for opinion, advice and direction concerning placement and effect of residue clause; and, first case establishing right of trustee to equitable set-off of debts owed to one estate from interest of a beneficiary in another: Re Pressman Estate, [2005] OTC 536 (SCJ).
  • Acted for beneficiaries of a trust to remove the trustee, and defend cross-claims for rectification to add him as a beneficiary or to set aside the trust: Rose v. Rose (2006), 24 ETR 217; 81 OR (3d) 349 (SCJ).
  • Acted for school board in having Cy-près doctrine applied to obtain benefit of educational trust fund for students of amalgamated board: Abercrombie Estate v. Etobicoke Board of Education (2004) 6 ETR (3d) 1 (OSCJ).
  • Acted for the applicants/appellants in obtaining dependant's relief increasing the benefit to be received by adult child with a serious deteriorative illness, and in which the SCC's decision in Tataryn was first applied in Ontario: Cummings v. Cummings (2003), 5 ETR (3d) 81 (SCJ); (2004), 69 OR (3d) 398 (CA); leave to SCC denied.
  • Acted for administrator of the pension plan as regards competing designations between first and second spouses and entitlement to survivor benefits: Teamsters & Participating Employers of Ontario Pension Plan v. Hay (2003), 65 OR (3d) 744; 43 RFL (5th) 25; 3 ETR (3d) 38 (SCJ).
  • Acted for widower at trial in having claim of executors/children of deceased spouse to set aside RRSP beneficiary designation dismissed, and obtain costs: Bliss Estate v. Bliss (October 2002), Court File No. 99-CU-78680; and, on appeal of costs award: (2004) CarswellOnt 3888 [2004] OJ No. 3921 (CA).
  • Acted for charities in establishing that signs or symbols were effective to create testamentary disposition in favour of the charities, and so avoid an intestacy: Urquhart Estate v. Urquhart (2000), 182 DLR (4th) 249 (OCGD)
  • Acted for guardian of property, to ensure that incapable person's right to have his solicitors' accounts assessed was protected: Neinstein & Associates v. The Bank of Nova Scotia Trust Company (October 2000), Docket C33741 (Ont. CA).
  • Acted as co-counsel for the respondent trustee in the lower Court, and Divisional Court on appeal, to set aside Order that broke a trust and have assets returned to an estate; case established that beneficiaries have right to notice of proceedings affecting their financial interests where testatrix was incapable and could not have changed her Will: Weinstein v. Weinstein (Litigation Guardian of) (1997), 35 OR (3d) 229 (OCGD).

Publications & Presentations

  • Co-Presentor, “Developments in the Law of Estoppel: Sword v. Shield”, Legal Week, Trust & Estates Litigation Forum (Evian) March, 2018
  • Chair, “Incidence of Claims for Alleged Professional Negligence, Steps Which May be Taken to Avoid a Claim, Repair a Situation or Mitigate Liability” for STEP Toronto branch, February, 2018.
  • Speaker, “Incomplete Beneficiary Designations: Corroborating Intention and the Remedy of Rectification”, RBC DS, April 2017.
  • Panel Member, “Public v. Private: How private are trust proceedings?”, Legal Week, Trust & Estates Litigation Forum (Provence) March 2017.
  • Speaker, “Identifying Undue Influence: Good Samaritans, Opportunists and Bad Actors”, BLG Aging Investors’ seminars, January (Toronto) and June (Calgary) 2017.
  • Chair, “Probate Planning – Issues Arising from Drafting and Litigating Secondary Wills” – STEP Toronto – January 2016.
  • Panel Member, “Mediation Advocacy” OBA - September 2015.
  • Panel Member with Dr. Robin Jacoby et al. “Servicing Aging Investors – Some Practice Tips” – BLG for financial institution clients – July, 2015.
  • Contributor, "ADR and Trusts: An international guide to arbitration and mediation of trust disputes," Spiramus Press Ltd., 2015.
  • Speaker, “Trustees’ Exercise of the Power to Encroach” – OBA/BLG Ottawa – November, 2014
  • Speaker, “Charitable Gifts: Complications Arising in Applying Cy-Près Doctrine,” LSUC – 16th Annual Estates and Trusts Summit, November 2013.
  • Panel Member, “Trusts Law: Selected Aspects as Related to Family Law,” Osgoode Hall Law School York University’s 2nd Annual Recent Developments and Complex Issues in Property and Equalization, June 2013.
  • Speaker, “Wills, Powers of Attorney and Challenges to Them,” The Medico-Legal Society of Toronto’s program on Capacity Assessments, April 2013.
  • Panel Member, "Tips for Success at Estate Mediation," Ontario Bar Association's (OBA) Institute, Trusts and Estates Law – Best Practices, Practical Tips and Risk Management for Estate Planning, February 2013.
  • Speaker, "Claims on Administration Bonds:  The Mysteries Unveiled," The Law Society of Upper Canada (LSUC) – 15th Annual Estates and Trusts Summit, November 2012.
  • Panel Member, "Solicitors' Duty of Care in Preparing Wills, Subject to Challenges," LSUC – 14th Annual Estates and Trusts Summit, November 2011.
  • Facilitator, "Rights of Non-Custodial Parents," Workshop, LawWorks, Education Law Institute, University of Toronto, OISE, September 2011.
  • Speaker, "Duties of Attorneys for Property: Jurisprudence: Solicitors as Attorneys, Trustees and Estate Trustees – What You Need to Know," OBA Conference, May 2010.
  • Speaker, "The Outer Limits in Will Challenges: Common Claims that May Be Brought Against an Estate: Will Challenges, Extensions, or the Election Under the Family Law Act, and Dependant's Relief Claims," OBA Conference, October 2009.
  • Author, periodic articles for Advisor's Edge Report, a publication on financial planning and wealth management, on various topics in estate and trust law, September 2009-2012.
  • Guest blogger, "Fight or Flight?:  The Responsibilities of Executors?" on slaw.ca, August 2009.
  • Speaker, "Implications and Open Questions of Court of Appeal Decisions in Frye and Serra cases" and panel member, "Variations of Trust", Society of Estates and Trusts Practitioners (STEP) Canada – 11th National Conference, June 18-19, 2009.
  • Author, "A Charitable Beneficiary's Entitlements – Rainy Days and Rainbows," BLG's Not-for-Profit Newsletter, June 2009.
  • Speaker, "Entitlement of Support of Adult Disabled Child – from a Parent or Estate," Family Institute Program entitled "Everything You STILL Don't Know About Family Law and Are Afraid to Ask!" OBA, February 2009.
  • Speaker, "Settlements in Estates," OBA Civil Litigation Section Program entitled "The Essentials of Settlements: From Offers to Handshakes," December 2008.
  • Speaker, "Litigation Involving Intestate Estates," OBA Estate and Trust Section Meeting, October 2008.
  • Speaker, "The Award of Costs in a Will Challenge," OBA Conference entitled "The Will Challenge: From Notice of Objection to Trial," March 2007.
  • Speaker, "Unjust Enrichment, Constructive Trust and Quantum Meruit Claims," LSUC – 9th Annual Estates and Trusts Summit, November 2006.
  • Speaker, "Rule 75.1 and the Order Giving Directions"; also member of panel discussion, "How Experienced Counsel Prepare their Clients for Mediation," joint ADR and OBA Estate and Trust Section Program entitled "Rolling Over in Their Graves," February 2006.
  • Speaker, "Aging Donors & Their Unhappy Children: Disturbing Trends in Estate Litigation and How to Effectively Respond to Challenges to Donations and Will Bequests," Ontario Hospital Association Conference entitled "Legal Issues for Hospital Foundations," October 2006.
  • Co-Author, "Mental Capacity and Consent", Chapter in Advising the Elderly Client, Butterworths, 2005.
  • Panel Member, "Three Estate Litigation Case Studies"; also speaker, "Strategies in Dependant's Relief Cases," LSUC – 7th Annual Estates and Trusts Summit, December 2004.
  • Speaker, "Claims Against the Estate: Quantum Meruit, Constructive Trusts and Proprietary Estoppel," OBA Program entitled "Estates: Beyond the Will," October 2004.
  • Speaker, "Mediating Mental Health Disputes," LSUC Program entitled "Capacity, Consent and Substitute Decisions," 2003.
  • Speaker, "Types of Disputes" and "The Estates Rules," Strategy Institute Program entitled "Estates Law for Mediators, Lawyers, Advisors, Charities and Financial Institutions," June 1999.
  • Co-Speaker, "Lost in the Litigation Forest: Where are the Rights of the Child in the Dispute Process," Annual ACPD/CALT Conference on the U.N. Convention on the Rights of the Child, June 1998.
  • Co-Author, Family Law in Ontario: A Practical Guide for Lawyers and Law Clerks, Canada Law Book Inc., updates for 1998-99.

Rankings & Recognitions

  • Recognized in the 2019 edition of Best Lawyers in Canada (Trusts and Estates).
  • Recognized in the 2018 edition of Legal Week’s Private Client Global Elite.
  • Recognized in the 2018 edition (and since 2013) of The Canadian Legal Lexpert Directory (Estate & Personal Tax Planning).
  • Recognized in the 2018 edition (and since 2017) of Chambers High Net Worth (Private Wealth Disputes, Band 1).
  • Recognized as a leading individual lawyer in the 2016 edition of the (Private Client: Contentious Trusts).
  • Selected by peers for inclusion in the 2018 edition (and since 2010) of The Best Lawyers in Canada® (Trusts and Estates).