Estate Litigation Lawyers - Contested Probate & Disputed Wills
Almost all Canadian citizens will leave assets when they die however in many cases that property will not be distributed in accordance with the wishes of the deceased either because they have left no written instructions in the form of a will or because the document purporting to be a will is inadequate or because they have failed to take into account that which the law indicates is a reasonable distribution of their assets. Estate litigation is a legal speciality adopted by lawyers who are involved in disputing or contesting wills or challenging some other material issue including distribution of assets or provision for children, spouse or other dependants. The law is not the same throughout Canada with regional variations that are often totally disparate. Regional law is often itself in a state of flux with changes in the law occurring on a regular basis. Expert legal advice from specialist estate litigation lawyers is essential if you are considering challenging, disputing or contesting a will or a grant of probate. We offer free legal advice from a specialist estate litigation lawyer, with no further obligation if you decide to proceed no further. We are litigation experts and we only deal with contentious matters that may result in the issue of defended legal proceedings in a court of law.
Contentious Probate & Will Challenges
Our specialist estate litigation lawyers deal with a wide range of potentially contentious issues including interpretation of wills and trust documents, settlement of disputes among beneficiaries, challenging the validity of a will, dealing with issues relating to mental incompetency and to powers of attorney, alternative dispute resolution, estate mediation and the issue of legal proceedings in a court of law to resolve any contentious matters relating to wills, probate and inheritance. Most of the work carried out by our estate litigation lawyers relates to contested wills, trustee disputes and dependant support claims. Our estate litigation lawyers only deal with disputed matters where the issue of legal proceedings in a court of law is a real possibility. We are court litigation specialists and we do not deal with standard probate applications, collecting and distributing assets and estate accounts. If you would like to speak about a contentious issue relating to the estate of a deceased person and you are a trustee or potential beneficiary please contact us as soon as possible and a specialist estate litigation lawyer will discuss the matter with you on the telephone at no cost and with no further obligation.
Estate Litigation Lawyer - Contested Will
A valid will should be a true reflection of the testator’s wishes in regards to disposal of the real and personal property owned by the deceased after their death. The relevant law for wills, intestacy and probate relating to the distribution of the assets of a deceased person is usually contained in statute, transgression from which often gives rise to will challenges and probate disputes. The most common litigated issues relating to contested matters relevant to the disposal of the assets of the deceased occur in the following areas :-
- the will was not signed and witnessed in accordance with the law
- the testator was mentally disabled and lacked testamentary capacity
- the testator was unduly influenced by a third party and was coerced into signing
- the will is a fake, forgery or a fraud and unknown to the deceased
- the will did not provide for dependants in accordance with the law
The personal representatives named in a will cannot be forced to carry out their duties however once formally appointed, a trustee cannot resign without the permission of the court. Application for removal can be made by either the personal representative or by one of the beneficiaries who may be unhappy about performance or for some other relevant matter. The court may dismiss the personal representative if appropriate and can at the same time appoint a replacement if necessary. All other trustees, personal representatives and beneficiaries must be served with notice prior to the court hearing and are entitled to make representations to the court. Taking on the role of personal representative carries with it onerous responsibilities and a trustee remains personally liable to the estate beneficiaries for any financial irregularities or losses caused by negligent actions.
A will should clearly express the intentions of the testator however following death it may become apparent that the will is not clear or that the wording has unexpected consequences that were not intended by the deceased. If that is the case and a potential beneficiary or a personal representative requires clarification then an application can be made to a court of law to determine the contentious issues. The court will consider the content and context of the language used in the will as well as the circumstances of the inclusion of the potentially contentious wording. The court will make an order, clarifying the issues and confirming the testator’s intention relating to the disposition of assets.
Dependant Support Claims
Whilst a testator apparently has total freedom to dispose of assets after death, as that person wishes, by way of a properly executed, valid will there are occasions where a third party has an over-riding interest in the assets and can ask the court to set aside the testators wishes in order to make alternative provision. If a testator does not provide for a person in a will, who is deemed to be a ‘dependent’ according to law, then that person may make application to the court for adequate provision from the assets of the deceased. Clearly this can impinge on the inheritance of other beneficiaries and in certain circumstances can extinguish their inheritance altogether. There are usually strict time limits in regards to these applications for dependents and potential beneficiaries should waste no time in contacting an estate litigation lawyer. It is not unusual for these matters to become fully contested challenges to a will with the erstwhile dependent opposing the named beneficiaries and all parties giving evidence to support their claim.
Power of Attorney Disputes
A power of attorney is granted to one person in order to allow that person to administer the estate of another person, who is still alive. A power of attorney is often granted to a child or to the lawyer of an elderly person in anticipation of mental decline. The person giving the power of attorney must not be mentally impaired at the time of signature and execution of the document and may revoke the power of attorney provided that they have full mental capacity at the time of revocation. There may be more than one attorney appointed. Our estate litigation lawyers deal with disputes between the grantor of the power and the attorney which usually takes the form of the attorney objecting to an attempted revocation by the grantor on the grounds of intervening mental incapacity and they also deal with any disputes that may arise between multiple attorneys which may take many forms.
Lack of Mental Capacity
A person who makes a will must have full mental capacity at the time that the will was executed and must, at that time, have fully understood its effect. These issues are difficult for a court of law as the elderly in particular may become clearly mentally unstable shortly after making a will in which case it may be open to an aggrieved third party to challenge the will on the basis that mental incapacity actually arose prior to the execution of the will. Such a challenge often arises when a beneficiary of an earlier will has been omitted from a subsequent will and wishes to revive an earlier will at the cost of the latter wills beneficiaries. In addition there are those cases where mental capacity may be in flux with the testator drifting in and out of competence on a daily or weekly basis with periods of full mental capacity interspersed with periods of disability. Provided that the testator’s actions are taken during periods of full mental capacity, they will stand notwithstanding periods of incompetence both before and after the event. These issues, when raised in mental incompetency litigation, are usually resolved by medical evidence and after full consideration by a judge of the overall situation which may involve hearing evidence from witnesses who were close to the deceased including carers, associates, neighbours and friends.
Undue Influence & Coercion
Undue Influence occurs when those with a financial motive seek to persuade a vulnerable individual to wrongly make a will in their favour. Legally it involves one person taking advantage of another person whose free will has been compromised, usually by psychological domination. This behaviour is often directed at the vulnerable elderly, those suffering from dementia or those with mental health issues. Undue influence is also known as coercion and is often carried out by family members, neighbours, care-givers and knowledgeable acquaintances. Challenges to a will on the basis of undue influence are usually accompanied by a capacity challenge. In most cases the burden of proving undue influence rests with the person who is challenging the will. Proving undue influence is not easy however the court will consider any suspicious circumstances when deciding the issue.
Grant of Probate
A grant of probate is a document issued by a court of law which indicates that a valid will has been proved in the Probate Court and which gives authority to the wills executor named in the document to deal with the assets of the estate which involves collecting in the assets, liquidating appropriate items and thereafter paying debts in order of priority before distributing the residue to the beneficiaries in accordance with the provisions of the will. In the event that there is no executor named in the will or if the named executor refuses the position then an authority called a Grant of Administration with Will Annexed is issued by the Probate Court giving authority to an administrator who is usually either a lawyer or one of the beneficiaries.
Intestacy – No Valid Will
Intestacy occurs where the deceased leaves assets but there is no will or where there is an invalid will with no earlier will taking precedence. The distribution of the assets of the deceased then follows statutory guidelines by way of a formula that applies to next of kin on the assumption that there are no prior dependency issues that take precedence to the distribution under the intestacy. In the event that there are no eligible beneficiaries the estate is forfeit to the state.