Understanding the Types of Potential Estate Challenges
When a person passes away, this can be a very difficult time for families. It can become even more challenging if an estate dispute arises over the deceased’s will. This can cause rifts within families, especially if a will is unclear or the estate owes someone money. The following article provides examples of potential estate challenges, which hopefully provides information on how to better plan your future or help indicate whether you have an estate claim.
Ways to Challenge a Will
There are numerous ways to challenge the validity of a will. One of the most common challenges is whether or not the person making the Will (Testator) has the capacity to understand the contents of the will. If a person does not understand that the will they signed deals with how their assets will be divided after their death, then the will could be challenged. This may occur if family members question the deceased’s mental or physical health when their will was drafted.
Another challenge is whether the Testator was under undue influence. If there was an undue influence (i.e. coercion), this means that the will does not reflect the real wishes of the Testator. To prove undue influence, the court must be provided with evidence showing a person who used some sort of coercion, fraud, and/or improper conduct on the Testator when constructing the will.
In Ontario, there are certain rules that make a will valid. If those formalities are not met, the will may be set aside. These include rules like how the will must be in writing; there must be two witnesses, and the witnesses must sign the will with the Testator present.
Lastly, a will may be set aside for public policy reasons. This means that a Testator does not have unlimited freedom in making their will. Any conditions placed on a beneficiary cannot offend Canadian public policy. These include conditions that encourage the recipient to violate criminal law or something that separates a family unit. A will cannot benefit an organization that is known to conduct activities that would be criminal in Canada. Further, a Testator cannot give their assets to a charitable trust that violate human rights principles.
Challenge the Executor of an Estate
An executor of an estate is someone who is in charge of administering the deceased person’s estate. This person not only executes the Testator’s will, but also their entire estate which includes life insurance policies, pensions, and assets not included in the will. Removing an executor is not easy and a court will do so in limited circumstances. These circumstances include the executor stealing money; not following the Testator’s instructions; or destroying the assets of the Testator. In estate litigation, the parties involved might not get a lot with the executor. A court is unlikely to remove an executor simply because they do not get along with everyone else.
A deceased person may have an estate that can owe money. This can include things like spousal support and child support. In Ontario, people who were abused by parents or caregivers can make a claim against the estate. This is a form of moral damages and there is no limitation period.
There may also be people who owe the estate money as well. If the deceased person loaned person money who was also one of their beneficiaries, the executor of the Will can offset any inheritance against the amounts that were not repaid.
If you are looking for more information or have additional questions, please do not hesitate to contact us. We will be happy to discuss your matter over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.