MAKING A WILL CHALLENGE CLAIM
Are you curious about the grounds for contesting a will? Given all of the complexities, you may be thinking, just how long will it take for the outcome of a will challenge? If the matter is not settled by agreement among the parties, it can take 2 to 4 years before a trial is conducted. Further, any side has a right to appeal a trial decision which can typically take another 12 to 18 months.
Throughout this process, the parties have the option of negotiating a settlement. They would compromise in order to resolve the claim. A settlement is often a good alternative to Court proceedings. This is because it cuts down on the financial and emotional costs of estates litigation.
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The Passing of Accounts | Grounds For Contesting A Will
The Estate Trustee is a fiduciary. Therefore, they have certain obligations and duties owed to the estate. One such duty is the common law duty to maintain a complete record and account. This would be of their activities. Also, they must keep such records and accounts accessible for assessment and inspection. This is to satisfy that the Estate Trustee has discharged the duty to maintain appropriate records. Also, the Estate Trustee may apply to the Court to “Pass their Accounts”.
The Passing of Accounts provides the beneficiaries with an opportunity to review. They can then approve or object to the formal accounts of the Estate Trustee. This includes a review of the compensation given to the Estate Trustee for administering the estate. If a beneficiary objects to an account, it may result in a formal hearing process for resolution. Sometimes the Estate Trustee is not forthcoming with records.
Notices Of Objection | Grounds For Contesting A Will
In such a case an interested party, being someone with a financial interest in the estate, can bring proceedings to compel the Passing of Accounts.
When deciding whether to order the Passing of Accounts, the court will consider various factors. This might include for example:
- Is there evidence of mismanagement, theft, or financial abuse?
- Will it be costly to the estate to allow such an order?
- Does the interested party only have a small financial interest in the estate?
Sometimes in an effort to save on costs, the Court will order an informal Passing of Accounts. This would be done in the hopes of encouraging resolution without further litigation. Ultimately, in Ontario, it is at the court’s discretion. They will decide whether or not to compel such disclosure.
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Objecting to a Will BEFORE a Certificate of Appointment is Issued
A challenge to a Will involves formalized court procedures. Where possible, it is more efficient and convenient to raise a client’s objection to a Will. Also, raise concern to the issuance of a Certificate of Appointment of Estate Trustee. This can be done with or without a Will prior to a Certificate of Appointment being granted.
A document called a Notice of Objection can be filed with the Estate Registrar. This would be done in order to prevent a Certificate of Appointment from issuing.
Objecting to a Will AFTER a Certificate of Appointment is issued
A party can move to have the Certificate of Appointment (often referred to as probate) revoked, even after it is issued.
In the motion or application, the moving party should propose an Estate Trustee During Litigation and provide the proposed Estate Trustee During Litigation’s consent. Security will normally be required unless the Estate Trustee During Litigation is a trust company or is able to satisfy the court that security is not required. It is difficult to avoid the necessity of posting security. There are strategic reasons for seeking to appoint an Estate Trustee During Litigation because the fees for the services get paid from the estate.
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Mediations in Estates Litigation
The Rules of Civil Procedure provide for mandatory mediation in estates matters. Mandatory mediation applies to the following proceedings, amongst others:
- formal proof of testamentary instruments;
- objections to issuing a Certificate of Appointment;
- return of a Certificate of Appointment;
- return of a Certificate of Appointment; and
- claims against an estate.
Evidence in general in Estates Litigation
It is important to obtain orders in the Order Giving Directions for the release of medical records, lawyers’ records, and financial records. Failure to obtain orders of this nature will pose difficulty to the parties in trying to obtain the release of such records from financial institutions, hospitals, doctors, and lawyers for obvious reasons of confidentiality.
Additionally, the interviewing of witnesses should be conducted as soon as possible, and evidence should be taken. Some of the most persuasive evidence comes from friends, relatives and neighbors who are witnesses as to fact. Those witnesses may have made independent observations with respect to events, activities and conduct of the deceased during the time period when the Will in question was executed. The evidence of the doctor who treated the testator would be considered very persuasive evidence. It can also be persuasive to have an expert provide a retrospective report based on a review of records and conclusions from those reports. Generally speaking, the Court will approach evidentiary rules in estates litigation on a more flexible basis.
Estate Trustees During Litigation
As stated earlier, a Motion or Application for Direction often necessitates obtaining an Order for a Certificate of Appointment of an Estate Trustee During Litigation. In most cases, the estate of a deceased needs to be administered in some fashion until the validity of a Will is determined. Therefore, there is a need for someone who can be granted the authority to act as Estate Trustee while the litigation is proceeding until it is concluded.
The basic rule is that a party unconnected with the litigation is the most appropriate person to be appointed. The authority for appointing an Estate Trustee During Litigation is found in s. 28 of the Estates Act.
Some information about Estate Trustee During Litigation:
- The main duties of an Estate Trustee During Litigation will be to safeguard the assets of the estate and to pay the debts.
- The Estate Trustee During Litigation has a duty to defend claims made against the Estate and the authority to settle these claims.
- An Estate Trustee During Litigation is considered to be an officer of the Court.
- Any Estate Trustee During Litigation can apply for the opinion, advice, and direction of the Court.
- Compensation to an Estate Trustee During Litigation is usually calculated in the same manner as Estate Trustee compensation and must be “fair and reasonable”.
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