
Will Challenges
Will challenges are a common occurrence in the practice of Wills & Estate Litigation. There are permitted legal grounds upon which to challenge and invalidate a deceased person’s Last Will and Testament. Claims can be made even when the person was fully mentally capable of understanding and signing the Will.
The legal grounds on which to base the claim will depend upon the circumstances of the Will signing and the legal obligations of the person making the Will. Each person’s situation is unique and must be measured against the law and the Court’s previously released decisions on the subject. Some examples of challenges to Wills include: spousal obligations (such as mirror Wills or support obligations arising on separation), obligations to Dependents, undue influence of another person on the Will-maker, lack of mental capacity of the Will-maker, or a lack of knowledge and understanding by the Will-maker of the specifics of the Will, and the unjust enrichment of the Estate (or beneficiaries) to the detriment of another person.
There are options short of bringing a Court proceeding which can be employed to resolve Will disputes, such as mediation and arbitration. These alternative dispute processes often have a higher chance of success, and can be less expensive and less time consuming than a Court proceeding. Out of Court processes also often minimize damage to family relationships arising from the dispute.
Estate Trustee Disputes
Even when a Last Will and Testament is not challenged, there may be disputes about how the Estate Trustee(s) is discharging his or her responsibilities. Joint Estate Trustees, who are supposed to act together, can find themselves in disagreement about the appropriate steps to take to administer an estate. When this happens, the Estate Trustees often need their own separate legal representation. These types of Estate disputes, which center on how the Estate is being managed by the Estate Trustee, how much money is being spent by the Estate Trustee, how long the Estate administration is taking and/or a lack of transparency and accountability, can all be resolved with proper legal guidance and confident legal representation. Estate disputes often involve sensitive family conflict which is always considered by our Wills and Estates Litigation Lawyers in their representation of our firm’s clients.
Claims to Remove Estate Trustee
Claims to remove Estate Trustees can be made for varying reasons and at any point during the Estate administration process. The Last Will and Testament may appoint an Estate Trustee of whom the beneficiaries do not approve. Occasionally there are two people named jointly as the Estate Trustees and they are unable to work together. There are other times where the Estate Trustee is not discharging his/her responsibilities in a capable or timely manner, and the beneficiaries wish to replace the Estate Trustee with a candidate better able to complete the task. The Court will replace an Estate Trustee or will bypass an Estate Trustee named in the Will if certain criteria are met. These criteria may include a breach of fiduciary duty or a conflict of interest.
Dependents’ Relief Claim
Often-times people who die have left a Last Will and Testament that excludes one or more of their legal Dependents from inheriting anything from the Estate. When this happens, the Court will intervene. The Succession Law Reform Act provides Dependents with the ability to make a Dependents’ relief claim against the Estate to obtain an Order for continued support. A Court Order for Dependent’s relief will take priority over distributions made in the Will.
The law defines who is a “Dependent”. A Dependent can be an adult child with special needs, a spouse, a minor child, or any other person the Will-maker was required to support prior to his/her death. The law states that an “adequate” amount of support should be paid from the Estate to the Dependant. Sometimes this obligation can be for periodic payments, or sometimes a lump sum. The amount that will be awarded is determined by looking at the relevant legislation as well as the cases that have already been decided by the Court on this topic. The principles from the case law will be applied to the facts of your case to determine whether there is a Dependent’s relief obligation, and if so, the amount of support that is adequate. Our Wills & Estates Lawyers are very familiar with the legislation and the cases and can provide you with legal guidance to pursue or defend against such claims.
Family Law Claims to Equalization
If a legally married spouse dies, leaving a Will which the surviving spouse does not accept, the surviving legal spouse may exercise an election under the Family Law Act, to take an equalization of net family property, rather than the bequest (or lack thereof) left to him or her in the Will. Legally married spouses have 6 months from the date of death of the Will-maker, to notify the Estate of his or her election. Our counsel can assist the surviving spouse by determining the value of the claim to an equalization of net family property, and deciding on the best claim to advance.
Passing of Accounts
A Passing of Accounts is a type of Court Audit. An Estate Trustee may be required to conduct a Passing of Accounts if the beneficiaries require it or if the Estate Trustee wishes to ensure he or she is safe from future claims that could be brought by the beneficiaries. A Passing of Accounts can be done at the middle or at the end of an Estate administration. One Estate can sometimes require multiple Passing of Accounts applications.
The Passing of Accounts audit will demonstrate to the Court and to all of the beneficiaries the amount of money/assets that existed at the beginning of the Estate administration, all the money/assets that were received since then, all the money/assets spent/sold/given away since the beginning of the Estate Trustee’s work and all the money/assets that are left. This information can be questioned by beneficiaries. The Estate Trustee will need supporting documents for the Passing of Accounts.
The Passing of Accounts process is something that our Wills and Estates Lawyers are very experienced with. Contact one of us to discuss your situation.
Power of Attorney / Guardian Disputes
A person who is still living but has lost the legal mental capacity to make decisions about their own property or personal care must have a Substitute Decision Maker. This can be an Attorney for Property or Personal Care who was appointed by the incapable person by signing a Power of Attorney document while they were still mentally capable. If the person did not sign a Power of Attorney document, then a Court Application for Guardianship must be brought. Most of the time, these are not disputed and our lawyers are very familiar with these applications.
If the application for guardianship is opposed by a family member, litigation can result. In addition, if an Attorney for Property or Personal Care or a Guardian is doing a poor job, a Court proceeding can be commenced to have the Court make an Order for relief. Some options for the Court are (1) to replace the Attorney/Guardian with another person, (2) require the Attorney/Guardian to do a Passing of Accounts (see our Passing of Accounts page for more information), (3) involve the Public Guardian and Trustee’s office, (4) attend Mediation to work on a Family Care Plan.
These can be the most time sensitive files because the individual is still alive, and he or she is vulnerable to, and dependent upon, the actions of others. Our lawyers will work to expedite the Court process to protect the safety of the incapable person, to secure their assets, and/or to bring the emotional family arguments to a resolution. Contact one of our Wills and Estates Litigation lawyers for how your family could benefit from our legal guidance.
Disputes Over Gifts / Loans Made Before Death
Many Estate disputes arise because the deceased gave a gift or transferred property or shared a bank account with one child but not the other(s). There can be disputes about whether these were gifts or loans or an advance on inheritance. Some people are concerned that their parents were pressured into these advances and did not actually intend the gift. Sometimes the advance may be considered inequitable. There are many types of transactions that can occur prior to the date of death that will affect how much money there is to distribute to beneficiaries. Sometimes, the amount can be large enough to warrant beginning a Court proceeding to request the intervention of a judge. Our Wills and Estates Lawyers can help disputants select the most appropriate dispute resolution process, whether it be Court, or mediation or arbitration, and provide robust representation to you.