Estate Litigation can tear families apart 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 a 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 Estate Litigation lawyers in Toronto, Ontario, 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 a tool for reaching a resolution.
We act in both contested and uncontested Estate matters, throughout Toronto and Ontario.
Many of the complicated estate disputes we encounter involve a contesting a will, 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 estate litigation lawyers can help you:
Our qualified & experienced Wills & Estates can help explain the complexities of how to challenge a will and more importantly, if 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:
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 (link))
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.
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 lawyer at Wise Law Office can help you understand how to challenge the executor of an estate, or how to contest the administration of an estate, and what 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 know 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.
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.
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.
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 ago.
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:
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.
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.
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.