Estates Litigation

Will Challenges

You may be able to challenge a Will or codicil based on the following grounds:

• improper execution, which means that the testator did not sign the Will or codicil, or have such documents witnessed according to the legal requirements;
• the testator did not know of, or approve of the contents of the Will;
• the Will is a fraudulent document;
• at the time the testator made the Will he or she lacked testamentary capacity;
• the testator was unduly influenced by someone into making and signing the Will

Will and Trust Interpretations

There are times when a testator has made a Will cannot be easily interpreted, or made changes that do not quite conform to the way the law allows such changes to be made. Sometimes, the drafting language in a Will or a trust is ambiguous or internally inconsistent. Other times, a provision in a Will or trust cannot be carried out.

Dependant Support

Although testators are free to name their beneficiaries in their Will, Ontario legislation restricts that right where adequate provision has not been made in the Will for the support of the testator’s dependents. The Succession Law Reform Act allows a dependent to initiate proceedings to seek support from the estate.

Executor or Trustee Removal

Where more than one executor or trustee is appointed, disagreements may arise as to how the provisions of a Will or Trust should be carried out. In other situations, an executor may be very slow in administering an estate, or a trustee may not be carrying out terms of the trust such as making payments to beneficiaries

Variation of Trusts

A trustee of a testamentary trust must carry out the terms of the Trust as set out in the written document. However, there are certain circumstances when the beneficiaries of a Trust may require a variation in those terms.

Passing of Accounts

Estate trustees, trustees of inter vivos trusts, attorneys for property and guardians of property are all required to maintain records of their dealings with the assets of another individual under their control. It is important to remember that these records are supposed to be kept contemporaneously.

Power of Attorney Disputes

An individual may appoint an attorney for property or for personal care by executing a power of attorney document. The individual making the appointment is called the “grantor” and the person being appointed is called the “attorney.”

Guardianship

If a person has not taken the step of appointing an attorney for property or personal care to make decisions on their behalf when they become incapable of doing so, it might be necessary for the court to appoint a guardian.

Mediation

Mediation is an important vehicle for assisting people to settle their disputes outside of court. A mediation can be held at any time in the litigation proceedings and to help resolve disputes and less expensively.