Challenging a Will
Upon a loved one’s passing, you may be surprised to learn that the contents of a will differ considerably different than a previous version of a deceased’s will or from the intentions of the deceased or treats the beneficiaries unequally. If you believe that the will does not reflect the true intentions of the deceased, you may have the basis to contest the validity of the will.
Contesting a will requires bringing a proceeding before the court for a declaration that the will is invalid. Generally, the basis for contesting a will are:
- The undue influence exerted by another individual;
- The lack of mental capacity of the testator; and
- Problems with the will document itself, such as improper witnessing, lack of signature, and/or other formalities not observed.
On the other hand, as an estate trustee is charged with ensuring that they respond to any court proceedings brought against the estate including challenges to the will.
Retaining a lawyer with expertise in estate litigation is recommended when looking to contest the validity of a will. If you are seeking to challenge a will or an estate trustee tasked with defending a will, we encourage you to contact our office to set up a consultation to discuss your options.
As a beneficiary under a will you have certain rights and expectations including that the estate will be distributed without unreasonable delay, that the assets of the estate will be managed appropriately, that the assets of the estate will not be misused by the trustees, and that reasonable requests for information and accounting with respect to the management of the estate will be complied with. Additionally, the beneficiaries have the right to seek the replacement of the estate trustee.
If you believe that your rights as a beneficiary are not being respected or that the executor for the estate is acting improperly, we encourage you to contact our office to set up a consultation to discuss your options.
While an individual has the ability to determine who gets their property after death, the rights is not absolute. Where a will does not make adequate provisions for the support of the deceased’s dependants, the disinherited can ask that a court make an order that makes provisions for the adequate support of the disinherited. A similar application may also be brought even if the deceased died without a will.
The issue of whether you are entitled to dependant’s relief is complex. If you believe that you are a dependant who has been cut out of a will or believe that the will does not adequately provide for you, we encourage you to contact our office to set up a consultation to discuss your options.
Interpretation of Wills or Trusts
The language of a will or trust can sometimes be ambiguous or unnecessary or could be the product of a drafting error. These issues can especially arise where the will is “homemade” or drafted by a non-professional. In such cases, a proceeding may be brought before the courts to seeking its assistance in clarifying the contents of a will.
If you are an estate trustee tasked with interpreting an ambiguous will or a beneficiary whose rights could be affected by unclear terms in a will, we encourage you to contact our office to set up a consultation to discuss your options.
Keeping the Estate Trustee accountable
A passing of accounts is the presentation of formal accounts by the trustee to the beneficiaries and the court which are either approved in the form presented, or amended by a court order and passed in a different form, or not passed due to the fact that for some reason the court is not satisfied with the accounts or some aspect of the administration of the estate.
Upon the passing of the accounts, the estate trustee is relieved of any further accounting for the relevant period except for allegations of fraud or mistake.
If you are a trustee seeking to pass accounts, we ask you to contact our office to set up a consultation to discuss the process for the passing of accounts.
As a beneficiary under a will or a trust, you also have the right to request that a trustee pass accounts. If a trustee does not voluntarily take steps to pass accounts, the beneficiary may seek a court order requiring the trustee to pass accounts. If you are a beneficiary who wants to obtain more information about the administration of a trust or estate, we ask that you contact our office to discuss how you may enforce your rights.
Removal of trustees or executors
The choice of a trustee to administer a trust, or to act as an executor for an estate, or as a power of attorney is an important decision. These roles come with specific responsibilities and obligations. However, at times, these individuals may lack the ability to fulfil their responsibilities and obligations or may wilfully be acting in a manner contrary to their responsibilities and obligations.
In such a situation, one of the remedies available for a concerned party is to seek an order from the court removing or replacing the trustee, executor, or power of attorney. The removal of a trustee has generally been treated as an extraordinary remedy.
If you are a trustee or an executor whose actions are being challenged by beneficiaries or other interested parties or an individual who believes that a trustee or executor is not fulfilling their obligations and need to be removed, we suggest you contact our office to set up a consultation to discuss your options.