Estate disputes can tear at families at a time when they are feeling most vulnerable.
Often the death of a close relative can bring old and new disputes to the surface and threaten to turn a time of remembering and reflection into one of conflict. If these conflicts go unchecked, they can permanently drive relatives apart, and consume a huge portion of the funds in an Estate.
As experienced Toronto Estate Litigation lawyers, our job is to focus on our clients’ goals and get results. We are effective advocates at motions, trials and appeals, but we also believe in skillful negotiation and mediation as tools for reaching a resolution.
We act in both contested and uncontested Estate litigation matters, throughout Toronto and Ontario.
Many of the complicated Estate disputes we encounter involve a contesting a will, pursuing support from an Estate for spouses, children and other dependents, removing the executor of an estate, challenging some aspect of the administration of an estate, or a combination of these.
Read on to learn more about some of the scenarios in which our Toronto estate litigation lawyers can help you.
Our Estate litigation lawyers can help explain the complexities of how to challenge a will, and more importantly, advise as to whether you have the grounds to do so. A “Will Challenge” is a broad term for a number of different cases in which someone seeks a hearing before a judge in court to dispute the validity of a Last Will.
These court proceedings are often brought because a Last Will is missing some of the formal requirements that make it valid, or because there are serious questions about the deceased’s mental or physical health when the Will was drafted, or because some aspect of the Will is openly discriminatory, or morally repugnant in some other way. You can bring a Will Challenge when there is some issue with the validity of a Will, but sometimes, it is more beneficial to challenge part of the Will, to get the Court to help you interpret the Will, or to claim Financial Support from the Estate over and above what the will provides.
Sometimes, a testator will have executed a Last Will that favours some people over others, but the Will is valid, legally speaking. In these cases, contesting a Last Will may not be possible. The Court may not set aside a Last Will if the only grounds for doing so is that the Will treats certain people unfairly. At Wise Law Office, we endeavour to give all our clients a fair and honest appraisal of how likely a will challenge is to succeed.
Here are some problem situations in which a Will Challenge may be necessary:
“My mother died recently. She apparently changed her Last Will 3 months before her death. It now leaves half her estate to her stepson, and names him as the executor. My mother was had dementia in the last few years of her life. I have serious doubts that she would have signed this document if she knew what it said. Also, it wasn’t witnessed by her regular lawyer of many years, it’s some lawyer none of us ever heard of. Up to about two years ago, she barely had anything to do with that step-son. I’m worried he took advantage of Mom for his own gain. How do I contest a will in a situation like this?”
Sometimes, a Last Will is prepared under circumstances that would make a person suspicious about whether the Testator really understood what she was signing, or was being coerced into signing free will. There have been many reported cases across Canada, where an elderly or disabled person was convinced by a family member or “friend” to sign a drastically changed Last Will.
In some cases, the testator doesn’t understand what she is signing at all, but plays along as if she does, because she is embarrassed to admit to being confused in front of a nice-seeming wills and estates lawyer.
In other cases, the testator is afraid to refuse to sign the will, because a family member keeps telling her he “needs the money” and implicitly threatens to remove his care, companionship, or support, if the testator doesn’t agree to sign off on the changes.In this case, it may be necessary to challenge a Last Will on the grounds that the testator did not have the mental capacity to understand what she was signing, was under some undue influence, or was under duress.
Challenging a Last Will in this manner may require testimony from the deceased’s friends, relatives and caregivers, as well as medical experts. (Compare: Coleman Estate, 2008 NSSC 396)
A few years ago, my brother made a Last Will naming me as the executor of his Estate. He died a few weeks ago, and I immediately got a call from a lawyer claiming to represent my brother’s neighbour. The neighbour had some sort of a Last Will I didn’t recognize. It left me and my siblings only a few thousand dollars each. The document was very strange. It had a lot of errors, and the signature didn’t match my brother’s. It was only witnessed by one person, from what I can tell, and that person wasn’t a lawyer. It was dated to a month before my brother’s death.
In Ontario, Last Wills have very strict formal requirements that must be met in order to be valid. While it is relatively rare that a Will is an outright forgery, a Last Will cannot be probated if it contains certain deficiencies, like missing signatures. If someone is trying to put forward a Last Will under suspicious circumstances, it may point to a more complex attempt at fraud going on behind the scenes.
My father never accepted the fact that I am gay. When I got married five years ago, he said horrible things about me and my husband, and told me he was cutting me out of his life. When he died, sure enough, his Last Will said “to my son, _____, and his so-called husband, I leave nothing, because he has chosen a [———-] lifestyle.” I can’t even read the whole thing, it just makes me too upset.
In some rare cases, a Last Will contains provisions that discriminate based on race, sexuality, or other grounds, or that contain instructions that are illegal, such as an instruction that a Trustee defy a court order, evade taxes, or give money to an outlawed organization.
For a Last Will to be probated, the Court must literally put its stamp of approval an Application to be Trustee, and on the underlying Last Will. The Court will often refuse to do this if it is being asked to tacitly approve a document that instructs somebody to break the law, or that discriminates against a person whose rights are protected under the Charter of Rights and Freedoms. Compare: Royal Trust Corporation of Canada v. The University of Western Ontario et al., 2016 ONSC 1143
Even if you have no reason (or desire) to contest a last will, you still may have a dispute with the executor. The experienced estate litigation lawyers at Wise Law can help you understand how to challenge the executor of an estate, how to contest the administration of an estate and the kind of orders a judge may likely make to assist you.
Many people initially seek out a wills and estates lawyer because they want to remove an executor, but it is important to recognize that this is often the last step that a judge will take in estate litigation, because it is a very drastic one.
Why are judges reluctant to do this?
An Estate Trustee (also known as an Executor) is the person tasked with administering every aspect of a deceased person’s Estate. The Estate Trustee has a duty to look after the interests of the Estate, and the interests of the beneficiaries, even-handedly and diligently, and to put these interests ahead of the Estate Trustee’s personal interests. Remember that an executor is not merely the executor of a will, and the property the will deals with. The executor is ultimately responsible for the entire estate, which can include life insurance policies, TFSAs, registered pensions, corporations, and other assets not covered in the last will.
This is a difficult job, often complicated by the fact that the Estate Trustee is himself a beneficiary, or does not have a positive relationship with other beneficiaries, or both. An executor can, within reasonable limits, be challenged on any aspect of the administration of an estate. But removing an executor from an estate is only the most serious and permanent of whole number of remedies that a person can seek.
These are some not-uncommon situations in which a person seeks to challenge the executor of an Estate and may be justified in bringing an application to Court for a Trustee to be removed.
My brother is supposed to be administering our father’s estate, but nothing is getting done. The house is in disrepair, I have no idea how much money his estate was worth or where things are going. Whenever I go over to the house to check on things, there are tons of overdue bills stuffed in the mailbox. I don’t even know if my father’s last tax return has been paid. My brother is a decent guy, I know he means well. But he took Dad’s death really badly and right now, he seems overwhelmed and just in over his head. What my siblings and I would really like is some constructive dialogue to take place, perhaps with a mediator.
When an executor is not willing (or able) to fulfil his or her obligations, a fellow executor, or a beneficiary, can bring an application challenging the executor of an Estate in the Court, demanding certain things of an Estate Trustee. This is commonly called an “Application for Directions.”
The Court may impose timelines and obligations on the Estate Trustee, and the litigation process may compel the Trustee to take overdue steps, like hiring a lawyer or an accountant, sell property, meet with a mediator, or make payments to beneficiaries. Sometimes, these obligations actually accomplish more that contesting the will or removing an executor.
My late partner of 15 years had two children from his first marriage. When he died, his Last Will provided that I could live in our house and the Florida condo we shared for as long as I lived, and his estate was supposed to provide me with an income every month. My step-daughter, who is named as the Estate Trustee, keeps threatening to kick me out of the house. Her family is using the cottage and won’t let me come visit, and I haven’t been receiving the monthly amount I was supposed to receive. She tells me that I wasn’t “really married” to her father and that the cottage belongs to “her family.” I just want to have the things my partner left to me. I don’t have a lot of money of my own.
The Application process can also assist the parties in separating minor issues from major ones. Discussions between two experienced estate litigation lawyers can lead to resolutions of some issues, and a judge may make orders that put other issues to bed. Lastly, a judge may order the parties to attend mediation with an experienced estate mediator. In fact, in Toronto, estate mediation is mandatory in all wills and estates disputes. Sometimes, (but not always) a party in an estate dispute needs to hear from a lawyer, mediator or judge what her obligations are, and the problem can be resolved.
My half sister and I are named as Estate Trustee’s of our mother’s Estate. We cannot see eye-to-eye on anything. The Last Will provides that we need to make all decisions together and as a result, everything is at a standstill. We can’t hire an accountant, we can’t deal with the banks, we can’t agree on how to divide up the property. This is all well and fine for my half sister, she is living in Halifax, has her own job, husband and life. I am here and trying to take care of mortgage payments on our mother’s house, deal with her taxes, and claim her pension benefits. All of my suggestions and requests, no matter how reasonable, are denied or ignored. At the same time, she keeps carping on me to pay her share of the Estate out. My mother’s estate isn’t especially complicated, but my sister’s stubbornness is making this all a nightmare.
If you in a contentious estate administration you can the court ask for an accounting, for payments to be made to beneficiaries, for an Estate Trustee to retain a lawyer, for the parties to meet with a mediator, for a party to repay money to the Estate, or for a Trustee to be removed. Conflicts between Trustees and beneficiaries are especially common in blended families, or between step-relations of the deceased.
The Court will not often act to remove a Trustee, unless the Trustee engaged in totally egregious behaviour like stealing money, defying the deceased’s instructions, or endangering the assets of the Estate. The Court is often reluctant to remove a Trustee simply because the parties who are interested in the Estate can’t get along.
Like every living person, Estates can both owe and be owed money. Debts may come in the form of support for a spouse or young child that depended on the deceased person for financial support, but who would not adequately be cared for in other ways. They may also come in the form of moral damages that the deceased owes a person who hurt by him. As of 2016, new changes to the law in Ontario have opened a path for victims of abuse at the hands of parents or caregivers to bring claims against estates that go back years, or even decades.
On the other hand, other people may owe the estate money. The deceased may have lent her children or other family members money. If the loan has never been paid back, the estate may have a right, or even an obligation, to offset any inheritance the borrower would receive against the amounts that were not repaid.
These scenarios represent situations in which a person may have a claim for money against an estate, or an estate may have a claim for money against another person, which require some action to be taken:
I lived with my wonderful partner for ten years. We both had children from previous marriages. His are much older, in their 30’s, mine are much younger, ages 9 and 12. Our family really depended on him for support. He unfortunately died very suddenly and didn’t leave a Last Will. I’ve just discovered that this means all his property will go to his children from his first marriage. I don’t dispute that those kids have a right to part of the Estate, but if we get nothing, we will be destitute.
When a person dies, with or without a Last Will, without having made adequate provisions for the support of dependants, those dependants are entitled to bring a claim for support against the Estate, under the Succession Law Reform Act. The support is calculated in a similar manner to how support is calculated in a separation. It is important to note that these claims must usually be brought within 6 months of the Estate being probated.
I lived with my aunt and uncle for years as a child, after my parents died. They mistreated me and my siblings for years, including some physical assault. My sisters and I have struggled to cope with the legacy of that abuse as adults. My uncle died last month and I just read that the laws recently changed in Ontario, and it would have been possible to bring a claim against him for the abuse we suffered all those years ago. Even though he just died, my sisters and I are considering bringing a claim against his estate. He had a very generous public sector pension and life insurance.
The Limitations Act in Ontario was recently changed, and now allows people who suffered abuse as minors at the hand of a parent or caregiver, to bring a claim against that person for damages, regardless of how much time has passed. This may open up a possibility for victims of abuse to bring claims that for a long time would not be heard by a Court. The right to bring these claims does appear to extend to cover estates. These claims, are of course, still subjected to the same scrutiny as any other, which means they must be supported by evidence that is credible.
My father died recently, and he divided his estate equally between me and my four siblings. I am named as Estate Trustee. We have one brother who borrowed tens, perhaps hundreds of thousands of dollars from my father in the six or so years before he died to invest in real estate, and to my knowledge, none of it was paid back. All his real estate ventures flopped. If those debts were being counted against my brother’s share in the Estate, he would get next to nothing. I’m not sure how to handle this matter best, I don’t think everyone in the family would be able to agree on how to treat these debts. I want to treat everyone fairly, but I also don’t want to tear our family apart.
The question of whether to forgive or call in past debts after a person’s death is extremely tricky, especially when you are in the hot seat as Estate Trustee. The law regarding calling in debts, especially when the debts are old, or the debtor had since gone bankrupt, is complicated. An Estate Trustee does have a duty to treat all beneficiaries fairly and equally. But you may feel, as Estate Trustee, that you have a greater duty to keep the peace in your family.
This means that sometimes, the “right thing to do” is to insist that some debt be repaid, and sometimes, it’s to let bygones be bygones.
If you are in this kind of difficult position, the experienced lawyers at Wise Law Office can guide you (and potentially, the other beneficiaries) through a negotiation and mediation process that will allow you to get to the bottom of all the facts, and allow the parties to reach a compromise that everyone can live with.
Contact WISE LAW‘s Estate Litigation Toronto lawyers by email or by telephone at (416) 972-1800 to arrange a consultation.
This general information about Ontario Wills and Estates law is not a substitute for legal advice and may not be relied on as such. It is not applicable to any specific case, and is intended for information purposes only. Readers are expressly advised to consult with a qualified Toronto Wills and Estates lawyer for advice regarding their specific circumstances and estate planning reqirements.
© Garry J. Wise and Wise Law Office, Toronto, Ontario. This information may not be reproduced without consent in writing.