Working with a Will – The most common problems that arise

At LegalWills.ca, we help you to write your Will. We do not get involved in the probate process at all. After you have died, your Will is probated, and your Executor has the responsibility to carry out the instructions in your Will. Sometimes this is where the problems start and estate disputes arise.

This is separate from a challenge to a Will. These are arguments arising while the estate is being managed by the Executor.

We recently spoke to Neil Milton of Ontario-Probate.ca. He specialized in probating of estates and has seen first hand the kinds of problems that can arise, and he also knows how to fix them.

He has kindly prepared this guest article, distilling his knowledge into the most common types of disputes that crop up while the Executor is trying to manage an estate.


Common estate disputes

While there are many causes of estate disputes, formal ‘will challenges’ are actually quite rare.

Common estate disputes
Credit: 123rf

There are a whole host of grievances that people have which usually fall in to one of the falling categories:

  • Debts incurred by the deceased before their death and not paid before death;
  • Gifts made by the deceased before their death which reduce the size of their estate;
  • Obligations created by statute which must be paid by the estate before any distribution is made to beneficiaries;
  • Failure of the estate trustee to act at all;
  • Improper actions by the estate trustee; and,
  • Allegations that the will itself should be invalid (a ‘will challenge’).

Disputes in these difference categories are often handled by the Courts very differently – some are relatively quick and inexpensive to pursue, others are very complex and expensive.  It is very important to get the advice of experience legal counsel to determine whether there is a case and if so how to pursue it.

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Canadian estate planning quiz


Explanation of the answers

This was a tough quiz covering estate planning in Canada. In this article we will provide you with some explanations for our answers.

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The specific grounds to challenge a Will in Canada

How to Contest or Challenge a Will

For many of us the loss of a family member is a very upsetting and stressful time, and we are not always thinking clearly during this emotional state. As a result, there are often times when an estate is distributed but some beneficiaries feel that it has not been done in accordance with the Will or that they have still missed out in some way. This isn’t uncommon and as any estate lawyer will tell you, a large part of their work involves resolving estate disputes between family members and other beneficiaries.

But if you are tempted to challenge a Will, be aware that there are specific reasons why you can challenge a Will. Although you may feel cheated, this may not alone be sufficient grounds for contesting a Will.

Some General Considerations

If you believe that you have not received a sufficient benefit under a Will and you fit certain criteria, you may be able to challenge a Will. Contesting a Will means applying to the court to have the Will, or parts of the Will, deemed invalid. While there may be a good reason you were left out, there may also be other possibilities.

Since contesting a Will is expensive and time-consuming, it is a good idea to get legal advice before you proceed. In addition, contesting a Will requires formal steps and procedures, and will only be successful if you can provide evidence to support your claim. Because the maker of the Will is deceased, any statements that you allege the deceased said, must be corroborated or confirmed by a witness. Depending on the jurisdiction, you may have to go to mediation and try to resolve the issues.  If the case is not settled at mediation, it will then go to trial.
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Challenging a Will: What are the grounds for contesting a Will in Canada?

I was told that if I don’t create a Will through a lawyer, somebody will end up challenging the Will. Is that true?

This is one of the most common misconceptions we hear related to preparing one’s own Will. If you prepare a Will through a lawyer’s office for $600 it won’t be challenged, but it you write a Will yourself, or through a service like LegalWills.ca it is bound to be contested. The reality is that any Will can be contested, but challenging a Will can only be successful under one of eight conditions.

 

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