A Certificate of Appointment of Estate Trustee
Are you looking at contesting a will before probate? The term “probate” is no longer used in Ontario. A Certificate of Appointment of Estate Trustee with a Will is a document issued by the court that proves the authority of the Estate Trustee to administer the Will. A Certificate of Appointment of Estate Trustee without a will is a document granted by the court that gives authority to the Estate Trustee to manage and distribute the estate of the deceased who died without a Will.
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Contesting A Will Before Probate | Dependants Support Claims
Dependent’s Support Claims are made pursuant to Part V of the Succession Law Reform Act and is a claim made against the estate by a Dependent for adequate provisions to be made to them out of the estate. Section 58 of the Succession Law Reform Act provides for the analysis of whether the deceased has made adequate provision for the proper support of his or her dependents.
A court must evaluate what has been given under the terms of the Will, or intestacy, and then determine what is adequate support.
As we will see, the nuances of “who is a Dependent?” and “what is adequate support?” are the crux of the Dependent’s Support Claim.
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Who is a “Dependent”?
The Succession Law Reform Act stipulates that if you are the: Child, Parent; Spouse; or Brother or Sister of a deceased who was providing support (or was under a legal obligation to provide support) immediately before his or her death then you are a dependant for the purposes of a Dependent’s Support Claim.
While it may seem clear to you who your spouse, parents, children, or siblings are, the law carves out specific definitions of who would qualify for the purposes of a Dependent’s Support Claim. For example, a niece who has always been like a daughter to you may or may not qualify as a Dependent.
Similar to a Will challenge, a Dependent’s Support Claim must be brought within 2 years of the deceased’s date of death and within 6 months of the date of the granting of the Certificate of Appointment of Estate Trustee. This timeline can be problematic because you waiting for the Certificate of Appointment to be granted while running up against a 2-year limitation.
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Undue Influence | Contesting A Will Before Probate
So let’s say you need more time to bring your claim and the Court grants you an extension. Your claim will only move forward with respect to the assets in the estate that have not yet been distributed. So there is a lot of space for a claim to lose its footing based on limitation period alone.
Section 61 of the Succession Law Reform Act provides that an application for Dependent’s Support must be made within 6 months from the issuance of the Certificate of Appointment of an Estate Trustee. However, notwithstanding the 6 month limitation period, s.61(2) of the Succession Law Reform Act provides that the Court, at its discretion, may allow an application be made at any time with respect to any portion of the estate that remains undistributed at the date of the application. Accordingly, an application may be made beyond the 6-month period if estate assets still exist, and with leave.
The lawyers can help with undue influence, grounds for contesting, and grant of probate. Further, they can assist with contested probate, claims under the inheritance, and lack of capacity.
Burden Of Proof On The Contestant
The burden of proving suspicious circumstances falls on the propounder of the Will, who must prove the testator had requisite capacity. Also, on a balance of probabilities, the testator knew and approved of the contents of the will.
Our lawyers can help with:
- helping with your burden of proof
- undue influence
- grounds for contesting
- estate planning
- improper execution
- lack of testamentary capacity
- power of attorney
- legal advice
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A testator who has suffered significant ill health, particularly if the condition, disease, or taking medication could affect the mental stability of the testator; or A beneficiary who has been particularly involved in “assisting” the testator in the preparation of the Will by:
- arranging for the making of the Will;
- taking the testator to the lawyer and participating in the meeting with the lawyer; and
- a Will prepared on instructions provided by the questionable beneficiary
- in the instance where a Will is being changed, dispositions in the Will that are drastically different from the terms of the former Will;
- circumstances where the testator appears dependent upon another, for example allowing the other person to speak on his or her behalf;
- disinheritance of close family in favor of a third party—more generally, a Will that makes no gifts to those seemingly appropriate and makes gifts to inappropriate beneficiaries; and
- a testator who has recently changed living circumstances, particularly one who moves in with the alleged perpetrator, or marries quickly.
Fraud & Forgery | Contesting A Will Before Probate
The burden for proving fraud is carried by those who attack the Will. Obtaining the evidence of the 2 witnesses to the Will often dispels allegations of fraud. However, the propounder of the Will must prove that it is more likely than not that the signature on the Will is the signature of the testator. Some allegations warrant engaging a handwriting expert. What remains surprising to me, and is absolutely true, is just how many people allege that an improper beneficiary held their hand on top of the deceased’s to sign the deceased’s name in executing a will. No wonder there are so many handwriting experts in demand.
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