Estate Litigation: The Procedure Summarized

What is an estate?

When an individual has passed away, property which has been left behind (real estate, personal belongings, assets etc.) are considered their ‘estate’.

 

What is litigation?

Litigation is a process for the purpose of enforcing a claim or a right.

When you combine these definitions, you end up with enforcing a claim/right that pertains to a deceased’s estate – this is estate litigation. The following are some examples that estate litigation lawyers come across, of potentially litigious matters relating to estate trustees, executors, administrators and/or beneficiaries:

1. Challenging the Validity of Wills
2. Powers of Attorney Disputes
3. Appointment and Removal of Trustees
4. Trust Related Disputes
5. Intestacy (no Will)
6. Valuation of assets

Despite the various disputes that may arise, estate litigation involves many of the same processes and procedures that are prevalent in other types of lawsuits. For example, to begin the process of challenging a Will or beginning estate-related disputes, an individual will be required to file an Application with a court as their starting point. Having a knowledgeable Estate Litigation Lawyer at this step is essential to ensure that your Application is on the right path from the start.

Overview

Challenges are most commonly brought upon the grounds of

 

• lack of testamentary capacity;
• lack of approval or knowledge of the contents of the will;
• the presence of undue influence; or
• non-compliance with requirements of due execution (as per the Succession Law Reform Act (SLRA).

 

The onus of proof to determine testamentary capacity is on the individual(s) challenging the Will. It must be established on a balance of probabilities that the deceased had the requisite level of testamentary capacity. The strength of this depends on the evidence available to the parties and the estate litigation lawyer’s preparedness to make a strong case.

 

Procedure

Phase One: Has a Certificate of Appointment been obtained?

Proceedings to challenge a will are commenced in the Superior Court of Justice, and the filing will be dependent on whether or not a certificate of appointment has been obtained. This certificate is proof that an individual has the legal authority to deal with a person’s estate and proof that a will is valid (if there is one). If a certificate of appointment has been obtained, an order (order for return of certificate – Rule 75.04 of the Civil Rules and Procedure) is sought (as soon as possible) requiring the individual holding the certificate to return it to the court in order to fairly resolve the challenge(s) to the Will itself.

If on the other hand no certificate has been obtained, then a notice of objection (Rule 75.03 of the Civil Rules and Procedure) is submitted to court in order to stop activity pertaining to the Will without providing notice to the individual filing the objection. This notice of Objection sets out the interest of the party and the legal grounds upon which the Will is being challenged and will be valid for three years.

Phase Two: Pre-Trial Procedures

Within thirty days of the orders explained above, the individual and/or their estate litigation lawyer must move for directions (Motion for Directions) or file an Application. If a Certificate of Appointment was obtained then it is likely that a Court proceeding is underway, however if not, an Application would be issued for directions instead. This is the stage where the actual commencement of the estate challenge happens (authority is derived from Rule 75.06 of the Civil Rules and Procedures allowing those with financial interest in an estate to apply for directions).

Once an Application is filed, the parties will typically speak with a Judge to deal with preliminary matters, such as timelines for the exchange of Affidavits and documents, cross-examinations, and any other Orders that may be required on a preliminary basis.

Before a matter can be set down for trial, in Toronto there is Mandatory Mediation required.  At mediation, the parties have an opportunity to discuss the issues in the dispute with an experienced mediator, who should assist the parties to try to resolve the litigation at this point. For more information about this step, refer to my earlier article on mandatory mediation in estate litigation,

Phase Three: Trial(s)

This phase is where formal trial hearings will ensue. Formal proof is required by parties involved in challenging a Will. This will involve the examination of due execution of the will, the testamentary capacity of the testator, and the examination of witnesses who have knowledge of the facts and circumstances relating to the issues. A witness is subject to examination, cross-examination and re-examination.

Should I seek an estate litigation lawyer?

It is highly recommended that individuals seeking to challenge the validity of a Will, (or conduct any of the other challenges listed above) retain a lawyer who specializes in estate litigation/dispute. Not only is this a niche area of litigation which requires a depth of estate law knowledge from a lawyer, it is also a scenario charged – mostly – with negative emotions. This is why, in order to get the best possible outcome, practical input from a professional estate litigator will be essential.