Estate Challenges – What Potential Claims You Can Make

If your loved one has passed and you are unsatisfied with the provisions in their will, you can make a claim against the estate. It is highly recommended that you consult a legal professional who will guide you through the complicated process and follow the procedural rules so as to avoid your claim being delayed or even dismissed.

There are various potential estate challenges that you can make, including:

1) Challenge the Will on the grounds that the testator:

a) Lacked testamentary capacity (age or mental state)

b) Did not have knowledge and approval of the contents of the will

c) Was unduly influenced

d) Did not duly execute the will

e) Committed fraud or forgery

2) Dependant Support Claim: if you meet the definition of a dependant, (you are a spouse, parent, child, or sibling of the deceased), and the deceased was providing support to you immediately before death, or had a legal obligation to support you through court order or at common law.

3) Unjust Enrichment or Constructive Trust Claims: if you are a common-law spouse and seek to be compensated for your efforts in the acquisition, maintenance, and preservation of an asset owned by the deceased.

4) Quantum Meruit Claims: If you performed services for the deceased which have resulted in unjust enrichment to the deceased’s estate, and you are seeking the value of the services which you performed (e.g. you want the money, time, and labour you spent on renovating the property).

5. Family Law Act Election: If you are a surviving spouse who is unhappy with the provision(s) made under the will, you can elect to use section 5(2) of the Family Law Act to receive an equalization payment of the assets (one half the difference in the value of the net family properties of the spouses)

6. Solicitor’s Negligence Claims: If you have found drafting errors, the will was not witnessed properly, the solicitor did not complete the will’s instructions in a timely manner, or the solicitor did not establish and document whether the deceased had testamentary capacity to make a will.

7. Public Policy Claims: If the entire will or a provision within it offends public morality, you can ask the court to set it aside. For example, a condition is imposed that the beneficiary must not get married or remarried in order to receive the gift, or provisions that promote breaking the law…etc.

Claims Against An Estate

You cannot make a claim against an individual that is deceased, but you may make a claim against their estate by suing their estate trustee. For example, you may have a claim against the estate if the deceased individual owed you a debt payment which the estate trustee did not make.

In Canada, Rule 9 of the Rules of Civil Procedure governs proceedings by or against estates. If you intend to file a claim, it is important to follow the procedures. For example, the claim or notice must be served properly and to the proper parties. In cases where an estate trustee has not been selected, you can serve the deceased’s next-of-kin and/or beneficiaries of the estate.

Beneficiaries are usually not involved as parties in estate proceedings. However, there are some exceptions in which the beneficiary will need to be involved, including:

  • If you are seeking to remove or replace an estate trustee
  • If you are making a claim of fraud or misconduct against the estate trustee
  • If you are asking the Court to administer an estate instead of the estate trustee
  • If the validity or interpretation of the deceased’s Will is a major issue in the proceeding

We understand that this introduction on estate challenges simplifies what is a complex, time-consuming, and emotionally demanding process. That is why we work with our clients to ensure that their wills and estate challenges have the best chances of success in the real world.

If you are looking for more information, do not hesitate to contact us and our dedicated Wills and Estates Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.

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