On what grounds can a Will be challenged?
The most common grounds for challenging the validity of a Will include improper execution, fraud or forgery, lack of testamentary capacity, undue influence, and suspicious circumstances.
If a Will is executed properly, it is presumed the testator had the testamentary capacity to create the Will. The party that is challenging the Will (the “Objector”) has the initial burden of proof to show there are “suspicious circumstances” surrounding the creation of the Will to meet the evidentiary threshold required to proceed. Once the Objector has met this threshold, the burden of proof shifts to the estate trustee to prove the Will in solemn form (i.e., the Will was properly executed, the testator had testamentary capacity, and was not unduly influenced).
Who can challenge a Will?
In Ontario, individuals who can challenge a Will include:
- Beneficiaries (over 18)
- Dependents (spouses, children, etc.) of the deceased
- Creditors
- Other interested parties (individuals with legal interest in the estate such as trustees, guardians, and other fiduciaries)
Individuals who cannot challenge a Will include:
- Those who have no legal relationship or interest in the estate
- Those barred by the limitation period
- Those without the legal capacity to challenge a Will
Is there a time period for challenging a Will?
Generally, the limitation period for challenging a Will is two years from the death of the testator. There can be exceptions made to challenges commenced after this time period depending on the particular case.
Can a Will be challenged after probate?
Yes, a Will can be challenged after the Certificate of Appointment of Estate Trustee has been issued (also referred to as “probate”). However, it is important to speak with a lawyer to discuss whether there are legitimate grounds to challenge a Will (whether after or before probate).
What are support claims in the context of estate litigation?
Under the Ontario Succession Law Reform Act (SLRA), support claims made against an estate (also referred to as “Will Variation claims”) enable qualifying individuals to seek financial support from the deceased’s estate if they were otherwise inadequately provided for by the estate plans of the deceased.
A qualifying dependant can include the following individuals:
- Married spouse
- Divorced spouse (if deceased had outstanding support obligations to the ex-spouse)
- Common law spouse or same-sex partner
- Parent
- Grandparent
- Minor dependants
- Grandchild
- Sibling
Is there a time period to make a support claim against an estate?
Yes, a support claim must be commenced within six months from the day the Certificate of Appointment of Estate Trustee is issued. An extension may granted in some circumstances by the court. It is critical to speak with a qualified lawyer before making a decision.
What is an application to pass accounts?
A person who acts as a fiduciary must keep accurate and complete records or accounts of any financial decisions and payments they make and any assets they manage.
A fiduciary includes anyone who manages an estate, trust, or acts as a substitute decision-maker for someone else, such as:
- an executor/estate trustee (of a Will and estate);
- a trustee (of a trust);
- an attorney (under powers of attorney) for personal care and property; or
- a guardian (of the person, of property).
An application to pass accounts refers to the legal process whereby a Court approves the accounts of a fiduciary.
Who can compel an application to pass accounts?
If there is concern about transparency, mismanagement of assets, or potential breaches of fiduciary duty by the fiduciary, some parties can compel a fiduciary to make an application to pass accounts.
Such parties can include beneficiaries of an estate or trust, grantors, individuals represented by substitute decision-makers, other fiduciaries (such as co-fiduciaries in the same estate or trust), the Attorney General of Ontario, or creditors. The Court can also issue an order for an application to be made.
What are fiduciary duty claims?
Fiduciary duty claims refer to legal action taken against fiduciaries who have allegedly breached their fiduciary duties. A fiduciary refers to an individual who manages an estate or trust or acts as a substitute decision-maker for someone else, such as:
- an executor and estate trustee (of a Will and estate);
- a trustee (of a trust);
- an attorney (under powers of attorney) for personal care and property; or
- a guardian (of the person, of property).
The main duty of a fiduciary is to act in the best interests of the individual(s) they represent. This means that fiduciaries are expected to make informed decisions, act in good faith, preserve and protect assets, avoid unauthorized self-dealing, keep accurate and complete financial records, and follow instructions governing their responsibilities.
The most common grounds for fiduciary duty claims include breach of duty of loyalty, conflict of interest, mismanagement of assets, failure to account, undue influence, fraud, and negligence.
What are service rendered and quantum meruit claims?
Service-rendered claims are made by service providers to seek payment for services they have provided to the recipient where the agreed-upon fees are not paid in full.
Quantum Meruit claims are made by service providers to seek fair and reasonable compensation for the services they have provided to the recipient party in situations where there is no explicit contract or agreement.
In the context of estate litigation, service rendered and quantum meruit claims are often made by a service provider against the estate of a deceased individual to whom they had provided services prior to the recipient’s death.