WILLS AND ESTATES
The Estate and Trust Litigation department at Pace Law understands the highly personal nature of these disputes and the circumstances surrounding them. Our approach to counselling clients and resolving conflicts is informed and guided by this. Being an executor or trustee of an estate can be a stressful job. Our attorneys advise and assist estate trustees and executors on important issues such interpreting a Will or Trust, applying for a Certificate of Appointment of Estate Trustee with or without a Will, intestacy circumstances, passing an Estate Trustee’s accounts, and distributing beneficiaries’ assets.
RESOLVING YOUR ESTATE DISPUTES
Estate litigation is becoming more common in Ontario as the Canadian population ages. Disputes regarding estates can arise in various ways such as family members contesting a Will or Trust; litigating disputes involving trustees or executors; complex estate plans; changes in a testator’s Will; inadequate provision for dependents; filing dependents’ relief claims when an heir is excluded from a Will; executors’ fulfillment of duties or passing of accounts; and dispersion of sentimental properties…and much more! Contact a trusted Pace Law Real Estate Lawyer today to simplify the daunting process and help get you the settlement you deserve.
Pace Law assists clients with claims involving estate or trust administration. Such claims necessitate the advice and guidance of legal counsel who are familiar with both the relevant legal issues and the available procedural choices. In conflicts over the administration of an estate or trust, there are a number of difficulties that frequently arise. These conflicts include; the interpretation of a Will or trust; quantum meruit claims; capacity claims; dependents’ relief claims; the passing of an Estate Trustee’s accounts, and breach of trust by an Estate Trustee.
The following are some of the issues that can lead to a Will being challenged:
- Capacity of the testator
- Whether or not the testator was subjected to improper influence
- Failure to comply with the procedures of execution while making a Will
- The presence of provisions in a will that deviate from Canadian public policy.
Quantum meruit claims typically emerge in estate litigation when a disagreement or argument had broken out between the deceased another person, promising to execute an action, but the payment was not made, and the deceased’s Will did not address the issue.
Claims connected to capacity are becoming more common as a result of the huge increase in life expectancies and the “baby boom” demographic bulge. Capacity is a complicated concept that can be used to a variety of situations, including: whether the deceased had the capacity to make a will, to manage property, to personally appoint a power of attorney, make medical decisions, or marry. The fact that the appropriate ability test is tailored to the matter under question further complicates these issues, which may overlap. An individual may, for example, have the capacity to marry but not to make medical decisions or manage property.
The individual must be “of sound mind, memory, and comprehension” in order to have “testamentary capacity,” or the ability to make a legally valid will. A will’s validity requires that the person who makes it understands “the nature and quality of the act.” It must also be demonstrated that the will-maker had a clear understanding of the nature and amount of his/her property, what those who were excluded may legitimately claim, and who the will’s beneficiaries would be/what they would get.
Though a testator has a basic right to choose who receives his or her property, that right is not absolute. The Family Law Act recognizes a person’s financial obligations to family members, including minor children, spouses, and parents, in Ontario. In the case of minor children, the Criminal Code mandates that parents provide for their children’s basic needs. Furthermore, under the Succession Law Reform Act, the estate of the deceased may be required to pay assistance to spouses, parents, and children that was not specified in the will.
A number of variables are taken into account while evaluating the outcome of a claim for relief for dependants who have been disinherited. When contemplating relief, the dependant’s age, physical and mental health, needs, and the proximity and duration of his or her relationship with the deceased are all important factors to examine. Additionally, any agreement between the dependant and the deceased, as well as the presence of additional claims, are important considerations. When the dependant is a spouse (including common law partnerships), the length of time cohabiting with the deceased, as well as a history of behaviour so atrocious as to disavow the relationship, are also factors to examine.
Quantum meruit claims commonly emerge in estate litigation where the deceased had entered into an argument with a person, promising to execute an activity, but the payment was not made and the action was not addressed in the deceased’s Will.
Bankruptcy, illness, and being convicted of a crime are all examples of conditions that could result in the Estate Trustee being removed. If there are several trustees and there is dissension or animus amongst them that threatens the beneficiaries’ welfare, the court may act to protect the beneficiaries’ interests by dismissing the trustees. In the case of an Estate Trustee’s breach of duties, the court may determine that the trustee’s failure to meet the heightened obligations of a fiduciary—that is, to act honestly and in good faith on behalf of the beneficiaries—justifies the trustee’s removal. The court may order the trustee to be dismissed if there is a financial conflict of interest stemming from the trustee’s past relationship with the dead or other circumstances that jeopardise the trustee’s ability to operate impartially.
WILLS, TRUSTS, OR POWER OF ATTORNEY
Within the City of Toronto, mediation is a mandatory step in the resolution of disputes over Wills. Our knowledgeable and experienced litigators recognize that securing an effective and satisfactory settlement often involves being sensitive to potentially damaging familial or personal relationships. We attempt to customize our approach to dispute resolution by identifying not only the relevant legal issues, but also the pertinent personal circumstances and relationships involved. We provide our clients with an informed understanding of their legal rights and obligations, and outline their options and the associated costs.