Estate Litigation

A Will can be challenged on a number of grounds including:

1. Non-compliance with the requirements of due execution;
2. Lack of testamentary capacity;
3. Lack of knowledge and approval of the will;
4. Undue influence; and
5. Fraud or forgery.

Although on its own, perceived unfairness such as a child being cut out of his mother’s Will is not sufficient grounds to successfully contest a Will in Ontario, a lawyer experienced in estate litigation should be consulted in case there may be other claims that can be made against the Estate.

Anyone with a financial interest in an Estate can challenge a Will.

If a Certificate of Appointment of Estate Trustee (Probate) has not been granted, the Will challenge is commenced by filing a Notice of Objection with the Court. The objector is required to state the nature of his interest and list the grounds on which the Will is being challenged in the Notice.

If a Certificate of Appointment of Estate Trustee has already been granted, a Notice of Objection will not suffice. Instead, the objector has to obtain an order for the return of the certificate of appointment. The effect of the order is that the appointment has no further effect until the issues with respect to the objection are disposed of.

Since challenging a Will can be an expensive, time-consuming and technical process it is best to consult with an estate litigation lawyer before proceeding.

Undue influence requires an element of coercion. It is not sufficient to say that the testator was persuaded to write his Will in a particular way. A good way to think about undue influence is if the testator was asked, he would say “this is not my wish, but I must do it”.

The burden of proof with respect to undue influence is on the party asserting the undue influence, i.e. the person challenging the Will.

While Courts are reluctant to interfere with a testator’s intentions and desires as to whom they appoint as their trustees, sometimes situations arise where a Trustee can and must be removed.

A Co-Trustee or beneficiary or any other person interested in the Estate of the deceased may bring an application before the court for the removal of the Estate Trustee. The burden is on the applicant to persuade the Court as to why the Trustee should be removed, a rather heavy burden.

Some common grounds that may result in the removal of an Estate Trustee include, but are not limited to:

• The Estate Trustee declares bankruptcy;
• The Estate Trustee is convicted of a criminal offence;
• Incapacity;
• Breach of trust;
• Lack of appreciation of the duties of an Estate Trustee;
• Disagreement with beneficiaries; and
• Conflict of interest;

Each case will turn on its own facts, and it is therefore important to consult with an estate litigation lawyer to determine whether the facts of your case are sufficient for a removal application.

If you are the grantor of the Power of Attorney, still have capacity and think your attorney is stealing or misusing their power in any way, the first step is to revoke the Power of Attorney immediately and contact all parties with whom the attorney was dealing and the attorney, in writing, to advise them you have revoked the attorney’s appointment.

If you suspect someone else is using a Power of Attorney for property to engage in theft, fraud of forgery, you can report the matter to the police. In addition, in Ontario, the Public Guardian and Trustee can be contacted to protect an incapable person being victimized by financial abuse.

In addition to criminal prosecution for financial abuse, the victim of financial abuse may have a claim against the Attorney for Property for breaching their fiduciary duty.

The rights of common law and married spouses in Ontario differ in some significant ways with respect to a deceased spouse’s property.

Upon the death of an intestate (died without a will) testator, the surviving married spouse receives a preferential share, which is the first $350,000 out of a deceased’s Estate, plus a proportion of the remaining Estate, depending on the number of children. On the other hand, a common-law spouse in Ontario is not entitled to a share of a partner’s Estate on an intestacy.

If the surviving married spouse’s entitlement is still not sufficient to provide adequate support for the spouse, the surviving spouse may additionally apply for dependant’s relief from the Estate.

A common law spouse’s remedies are limited – under the Succession Law Reform Act, an application for dependant’s relief, where it can be shown the surviving common law spouse was dependant on the deceased; at common law – a constructive trust claim, or an unjust enrichment claim, or another contract claim which may be enforced by the common law spouse against the deceased’s Estate.