Allan Law provides comprehensive legal advice and services for estate, trust and capacity matters, including estate litigation claims involving:
- Will Challenges
- Dependent Support Claims
- Power of Attorney Litigation
- Trustee Disputes – Removal of Executor
- Accounting Disputes
- Will Interpretations
- Guardianship and Capacity Disputes
At Allan Law, Jason is involved in every aspect of the carriage of your matter. You receive the personal care and attention you require and deserve.
A Will challenge proceeding involves someone seeking to set aside the Last Will and Testament of a deceased person. The person seeking to set aside the Will must establish a legal basis for the claim. The common grounds for challenging the validity of a Will are:
- The lack of testamentary capacity
- Lack of approval or knowledge of the contents of the Will
- The presence of undue influence
In addition to the above factors, the courts will also consider the overall facts in any particular Will challenge case. In particular, the courts have recognized that “suspicious circumstances” may exist regarding the overall preparation and execution of the Will. When “suspicious circumstances” are present, the capacity of the testator and his or her knowledge/approval of the Will are called into question.
You may have the legal right to challenge a Will if you question its validity.
We act for individuals who seek to challenge the validity of a Will as well as for those who seek to uphold the validity of a Will. Should you wish to schedule a free initial consultation to discuss a Will challenge claim, please contact us.
Dependant Support Claims
Where someone dies without making adequate provision for the support of a dependant, the dependant can bring a claim against the deceased’s estate for support. The claim, if successful, allows the court to make an order for the provision of the dependant’s support out of the deceased’s estate. In layman’s terms, the claim allows a dependent in certain circumstances to rewrite the deceased’s Will to the extent the Will fails to address the dependent’s support. The “support” ordered can be either lump sum or periodic in nature and can include the transfer of or assignment of any property in the estate.
There is a two-part test to qualify as a dependant: (a) the dependant must be a spouse, parent, child or sibling of the deceased (b) to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death. The definition of “spouse” includes common law spouses and a “child” can include adult children, grandchildren and a person the deceased demonstrated a settled intention to treat as a child.
If the claimant qualifies as a dependant, the next consideration is whether his or her needs were adequately provided for by the deceased. In the event adequate provision was not made for the dependant’s support, the next question becomes what amount should be apportioned from the estate to satisfy the dependant’s support.
There are strict limitation periods applicable to this particular claim.
Our office has a track record of successfully bringing and defending dependant support claims. We would be pleased to meet with you for a free consultation if you believe that you, your spouse or your child qualifies as a dependant and that his or her financial needs were not adequately provided for by the deceased. Alternatively, we can act for you if you are defending a claim brought against an estate by a “dependant.”
Claims by Common Law Spouses
Common law spouses are not treated the same as married spouses in many aspects of the law. This is particularly the case in the field of estate law in which there are major distinctions in the claims available to common law and married spouses.
First, under the Family Law Act, a common law spouse is not entitled to an equalization claim (i.e., a claim for the division of property accumulated over the course of the relationship). In the case of married spouses, if one spouse dies the surviving spouse can file an “election” to receive either an equalization payment or his or her entitlement under the Will of the deceased spouse. The right to an “election” ensures that a surviving spouse receives at least his or her statutory entitlement under the Family Law Act, irrespective of the terms of the deceased’s Will.
Second, under the Succession Law Reform Act, a common law spouse has no statutory right to an interest in the estate of his or spouse in the event the spouse dies without a Will. This is also contrasted with married spouses who have a statutory right to share in the intestate estate of a deceased spouse.
While the distinctions, reviewed above, work to the disadvantage of common law spouses, there are claims available at law to common law spouses who feel they have not received their proper entitlement. The claims allow the surviving spouse to assert an interest in the estate of the deceased spouse and to make a claim for support (see above).
Contact us for a free consultation if you wish to discuss claims involving common law spouses.
Power of Attorney Litigation
In some situations, it may be necessary to force the removal of a Power of Attorney.
In our practice, we frequently are involved in cases in which it is alleged that a Power of Attorney is abusing the grantor and/or his or her property. In such cases, it may be necessary to apply to the court for the termination of the Power of Attorney and an order requiring the attorney to pass his or her accounts. If the grantor’s money has been misused, a claim can be advanced to recover any lost funds. Conversely, if you are an attorney defending such a claim, it is advisable for you to obtain legal representation.
The rising phenomenon of elder abuse is a sad reality. Often, the abuse is at the hands of a child acting pursuant to a Power of Attorney. The Power of Attorney document can be either legally valid, executed at a time when the grantor was capable, or legally invalid. If elder abuse is suspected, there are legal recourses available against the attorney, including: an application to court for the attorney’s removal, a court audit of the attorney’s accounts and a claim to recover any lost or misappropriated funds. Some signs of possible financial abuse may include:
- sudden unexplained changes in bank account or banking practices, including unauthorized ATM withdrawals
- unauthorized attempts to include additional names on a senior’s bank signature card
- sudden interest in the senior’s financial affairs without their knowledge
- sudden unexplained changes to a will or other financial documents
- sudden drop in cash flow or financial holdings; including sudden transfer of assets without the direct involvement of the senior
- suspicious-looking signatures on cheques and documents
If you suspect someone you care for is being abused by their attorney, please contact us for a free consultation to discuss the legal recourse available.
Removing an Estate Trustee and Executor Disagreements
It is common for disputes to arise between the executor and the beneficiaries of an estate. In some cases, disputes can even arise between co-executors.
If the disputes go unresolved, a party may apply to the court to force the removal of the executor or to seek assistance with the dispute. The law provides that the court may remove and replace an executor where the executor has engaged in misconduct or where, due to hostility, it is no longer possible for the executor to carry out his or her duties in an objective and impartial manner.
Alternatively, to avoid potentially costly litigation, executors may wish to develop an administration agreement which can cover such issues as:
- Selection of estate counsel to probate the will (now referred to as an Application for a Certificate of Appointment of Estate Trustee with a Will)
- Selecting an estate accountant
- How to manage and sell assets
- The disposition of personal effects
- Payment of expenses
At Allan Law, we represent beneficiaries and estate trustees in removal applications and assist in resolving disputes involving executors.
Passing of Accounts
In layman’s terms, “passing of accounts” refers to the process by which the estate trustee presents his or her accounts to the beneficiaries and the court and applies to have the accounts approved by the court. The court can approve or “pass” the accounts, amend the accounts or reject the accounts. The process functions as a court audit of the estate trustee’s accounts. The beneficiaries can object to the accounts, demand more information and documentation and challenge the estate trustee on his or her accounts in a hearing before a judge. The passing of accounts application can be a useful proceeding for challenging an estate trustee on the administration of an estate. Alternatively, an estate trustee may seek to have his or her accounts passed or approved.
We represent beneficiaries and estate trustees in passing of accounts applications.
In some cases the language of a Will or its application is unclear. One of the most common problems involves ambiguity in the interpretation of a provision in the Will. When such a problem arises, the estate trustee can make an application to the court for its “opinion, advice and direction.” The court will hear submissions from those with an interest in the estate and the outcome of the interpretation. Essentially, the court will instruct the estate trustee with respect to the interpretation. The proceeding is beneficial to the estate trustee because the court’s instructions exonerate the trustee from liability for acting upon the court’s instructions.
You may wish to consider bringing an application for the court’s “opinion, advice and direction” if you are an estate trustee and there is some issue with respect to the terms of the Will.
Under the Substitute Decisions Act, 1992, you may bring a guardianship application to obtain the legal authority to act on behalf of someone deemed “incapable.” The application can include the right to make healthcare decisions for the incapable person and to manage the incapable person’s financial affairs. Such an application is often required if the incapable person does not have a Power of Attorney and lacks the requisite mental capacity to give a Power of Attorney.
In order to obtain guardianship, there are legal tests which must be met and rather complex material must be submitted to the court, including medical evidence, a management plan and affidavit material. The granting of “guardianship” is by no means a rubber stamp. The court must be satisfied of the need for a guardianship order and that the applicant is the proper choice. Please contact us for a free consultation for more information on the application process.
Disputes often arise when someone holds money for someone else in “trust.” The “beneficiary” may allege that the money is being improperly invested, distributed or otherwise mismanaged. Conversely, the “trustee” may seek to resign or obtain the court’s advice and directions regarding the administration of the trust. In either case, it may be necessary for the trustee or the beneficiary to obtain legal advice. We represent beneficiaries and trustees in such disputes and would be pleased to meet with you for a free consultation.