If you feel the deceased was unduly influenced to change their Will for the benefit of someone else, you can dispute the validity of the Will. If you feel an estate trustee has not properly fulfilled their duties, you can dispute their administration of the estate.
Estate law disputes are usually between family members and can be complex and emotional.
While a person is alive, there may be a dispute over their power of attorney’s decisions. You may feel the person appointed as power of attorney is abusing their authority or not acting in accordance with the person’s wishes. After death, there may be a dispute over a Will or the role of the estate trustee. You may feel the Will is not valid as it was made late in life and the deceased did not understand what they were signing. Or you may feel an estate trustee is not carrying out their duties and the estate is being squandered. On the other hand, you may be a diligent estate trustee and feel one of the beneficiaries is harassing you and keeping you from doing your job.
If you feel there is something wrong with powers of attorney, a Will, or the administration of an estate, you likely need timely professional advice. We assist individuals to resolve disputes over Wills, powers of attorney, and the administation of estates. We also assist estate trustees who need to defend themselves against claims.
Dispute resolution at Scharf Estate Law
What do dispute resolution services cost?
The cost of assisting you to resolve a dispute about powers of attorney, a Will, or the administration of an estate are difficult to determine unless we have a complete understanding of the situation you find yourself in. Can it be resolved quickly with one or two emails, or will it take hours and weeks of discussion and negotiation? We have no way of knowing until we have discussed your situation with you.
Before you retain Scharf Estate Law to act on your behalf, we will quote an exact price for specific services or an hourly rate with an estimate of the hours which will be required. In some cases, we are able to charge a percentage of what we recover for you (a contingency fee).
Can I challenge the validity of a Will?
If there is something wrong with a Will, the court may intervene to correct the error. Before asking the court to intervene, we will assist you in working to obtain a fair resolution to your unique dispute. There are several circumstances which may call the validity of a Will (or part of a Will) into question:
- Was the Will properly executed? For instance, did the deceased sign it? Did two individuals witness the deceased’s signature and neither witness is a beneficiary under the Will?
- Did the deceased person have adequate mental capacity to make a Will? Individuals need to understand their estate and the contents of their Will, or the Will may not be valid.
- Are the contents of the Will clear or is their confusion? For example, if the deceased leaves everything to “my offspring,” does this include a child born early in life and placed for adoption years before the deceased married their life partner and had three more children.
- Was the deceased unduly influenced to change their Will for the benefit of one or more individuals? Often, late in life, individuals can be taken advantage of and coerced into doing things they would not have done when they were younger and mentally and physically fit.
In life, I depended on the deceased. Do they need to provide for me in their Will?
In Ontario, the Succession Law Reform Act requires that dependants receive “adequate provision” in a Will. “Dependants” may include a spouse, common-law partner, sibling, parent, or adult child, it is not limited to children under 18. If you were dependant on the deceased during their lifetime and are not provided for in their Will, the court may intervene to ensure this oversight is corrected and you are provided for. We will work with you to correct this oversight.
The estate trustee is not fulfilling their duties. What should I do?
Estate trustees have many obligations when administering an estate. Their duty is to the estate, not to the beneficiaries (who do not have the right to instruct the estate trustee). Yet, beneficiaries have a personal interest in ensuring the estate trustee is acting reasonably. Often, the estate trustee is a loved one who has been appointed to the role — they are doing the best they can but are missing some important steps along the way. If you feel an estate trustee is not adequately protecting the estate’s assets or is spending money inappropriately, you may wish to dispute their actions.
If you wish to dispute the actions of an estate trustee, we recommend you get professional advice. It is best to bring up issues early so problems can be resolved before significant errors are made. Disputes between beneficiaries and estate trustees are usually resolved with careful, well-informed communication. If required, you can apply to the court to intervene and instruct or even replace an estate trustee.
How do I avoid causing conflict when preparing my Will?
Your last Will is the intimate expression of your wishes for what happens to your estate after your death. You do not want it to be a source of conflict between your children and other people who are important to you. Avoiding conflict can be tricky, but there are steps you should take when planning your estate to minimize the likelihood of conflict.
When you die, family feelings may run hot. Conflict in times fraught with emotion is particularly risky and can lead to expensive litigation which would see your estate spent on legal fees rather than what you want.
Some things to consider when preparing your Will:
- It’s your stuff. Divide your assets as you see fit (and as the law allows) but consider how your loved ones may perceive the division of assets.
- When preparing your Will, speak with family and friends to let them know your intentions. These can be difficult conversations and you may want a lawyer to help you.
- Explain and document loans and gifts, both while you are alive and in your Will. If you loaned money to one of your children, make sure the status of that money is clear — was it a loan that must be repaid to the estate after your death or was it a gift? You can forgive loans in your Will.
- Consider giving some of your estate to loved ones while you are alive.
- Regularly review your Will. Have your circumstances changed such that what you originally intended no longer makes sense? For instance, do you have a new spouse or life-partner, or have you become grandparent?
- Take care in appointing the right person or organization to be your estate trustee. For some, having all their children share estate trustee duties is right; for others, having only one child or a third-party is a better choice.
For more information, see the following blog and vlog entries:
Blog, Vlog & News
Insights & Clarity
I want to leave money to my kids but… A simple explanation of trusts