Category: WILL CHALLENGES

Wills are the best way to ensure that your estate is divided in a way that you wish, and allows you to give to some people in your family, and if desired, leave out others who might otherwise have been beneficiaries if you were to die without a will.  And while a will can go a long way to help avoid litigation, nothing in life is guaranteed, and sometimes a disgruntled family member might try to win themselves a piece of the estate. One way they can do this is by claiming that a will is invalid. The way that courts approach such claims was recently demonstrated in a decision from the Alberta Court of Queen’s Bench.

Wills leave out two grandchildren

The deceased was 96-years old when she died in 2016. She made a number of wills over the years, including in 2010, 2014, and 2016.

The deceased had five children, including “BB” who is the mother of “JB” and “PK.” BB died in 2011, five years before the deceased.

The deceased’s 2010 will stated that if any of her children pre-decease her, then any surviving children of that child would take the child’s portion of the estate equally. This would have meant that with BB dead, JB and PK would have received her portion of the estate.

However, the wills drafted in 2011 and 2016 contained an important change. These wills stated that the estate would be divided equally among her surviving children. She named the surviving children, obviously excluding BB, but maintained that if one of them should pre-decease her, then their children would still enjoy that portion of the estate. This clause was also included in the 2016 will.

Challenges to the validity of the will

JB brought the matter to court, claiming there were “suspicious” circumstances surrounding the preparation of the 2014 and 2016 wills. She said one of the deceased’s children (JB’s aunt) manipulated the deceased into changing her will due to a personal vendetta between JB and her aunt that arose when BB died.

JB stated that the deceased was blind by 2014 and relied on the aunt for all emotional and physical needs. She said the aunt told the deceased to cut her and her sister out of the will.

The aunt agreed that JB and the deceased had a falling out following the death of BB, but said she did not know the exact cause of the falling out. Other family members testified that the deceased stated that she wanted her will changed to reflect her desire to divide her estate among her surviving children. The estate planner, who helped with these wills, said he had no concerns about her capacity or ability to understand what she was doing at the time. He also said that the deceased approved of the will after he read through it and explained all of the clauses it contained, including the clause that cut out JB and her sister.

How to approach a challenge about the validity of a will

The court stated that a 1995 Supreme Court of Canada decision provides that an analysis of a will should begin with a presumption of substantive validity. The decision said that if a testator who knows and approves of the contents of a will should be presumed to have the necessary testamentary capacity.

In this case, while JB did bring concerns that call into question the free will or capacity of her grandmother, there is a problem in that she is the only source of evidence for this, and that there is nothing to corroborate her position. As a result of this, the court found there were no issues with the will.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

A message often delivered by estate lawyers is that it’s incredibly important to have a will in order to provide as seamless an experience as possible for your beneficiaries in the event of your death. However, it’s not always the case that more is better, and as we see in a recent case heard by the Ontario Superior Court of Justice, having multiple wills with different beneficiaries can lead to litigation concerning which will is valid.

Multiple wills lead to negotiation

The parties involved in the matter were the “moving party”, who was the daughter of the deceased’s common-law partner (who was also deceased), and the “responding parties” who were a small group of neighbours and friends of the deceased.

The deceased died on September 12, 2018. He was 91-years-old at the time. His estate was estimated to be worth about $1.7 million. The deceased had signed a will in 2011 that left his estate to the moving party. However, the responding parties took the position that an August 8, 2018 holograph will, and an August 24, 2018 will, which left the estate to them, should be enforced instead.

This impasse led to negotiations which began in January 2019. The responding parties asked for draft minutes of settlement, which were produced and negotiated over. There was an agreement between the parties that the settlement would be signed.

Parties want to retract offer to settle

In mid-July, 2019, the responding parties retracted all prior offers to settle, hired new lawyers, and refused to sign the agreement.  The issue getting in the way of negotiations involved insurance on an apartment building owned by the deceased, which was part of the estate.

The court looked at Rule 49.09 of the Rules of Civil Procedure, which addresses what happens when a party who accepts an offer to settle then refuses to comply with the terms. The rule allows the other party to seek enforcement of the agreement.

The court stated that the notion of finality is important, and that “parties who reach a settlement should usually be held to their bargains.” The court also noted that agreements to not have to be in writing to be valid, but did cite a 1959 Supreme Court of Canada decision which stated, “Where parties contemplate the execution of a written agreement before their legal obligations become enforceable, then the failure to execute the written agreement is fatal to its enforceability.”

The moving party stated that the main part of the settlement was an offer of $300,000 to the responding parties, and that the areas they disagreed on were merely “fine-tuning” and should not lead to disposing of the entire agreement.

But in looking at the negotiations, the court found that the parties were discussing specific terms of the settlement right up to July, 2019, and that the responding parties had never indicated acceptance of any of the terms through the negotiation and had failed to sign them. It was only after the moving party demanded a signature that negotiations stopped and the responding parties decided to pull out of the settlement altogether.

As a result of this, the court found that the moving party could not enforce the settlement, which would have led to her dictating its terms.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

If we had to pick just one reason to take steps to properly plan for the administration of your estate in the event of your death, we may very well say that doing so, including the creation of a valid will, is the best way to ensure that your estate is handled in a way that you want. In addition, doing so can help prevent your desired beneficiaries from having to spend time and money litigating how your estate is handled. This lesson is demonstrated clearly in a recent decision from the  Ontario Superior Court of Justice. This case is interesting in that it differentiates itself from some of the other cases we have discussed where someone dies intestate (without a will) in that the deceased’s child was estranged from him, leaving the deceased’s common-law spouse and the child at odds over who should be the estate’s beneficiary.

Common-law spouse and son both claim beneficiary status

The deceased passed away on April 2, 2019, without a will. At the time of his death, he was involved in a common-law relationship with “the wife” who claimed that as his common-law partner, she was entitled to receive a Certificate of Appointment as estate trustee. She also intended to advance a claim for relief as the deceased’s dependent under Ontario’s Succession Law Reform Act.

However, the deceased also had a child (“the son”). While the son was the biological child of the deceased, the two did not have a relationship, as the son became a Crown Ward when he was a child, meaning he was placed in the care of the province, but not adopted.

The son responded to the wife’s application by stating that he is the sole beneficiary of the estate and sought to be named as the estate’s trustee.

Does Crown Wardship status disqualify the son?

The court stated that the issue of whether the son’s status as a Crown Ward disentitled him to an interest in the deceased’s estate as a beneficiary would have to be determined at a later time.

However, the court did say that case law provided by the son seems to conclude that Crown Wardship orders to not terminate a parental relationship. This is unlike adoption, which does formally terminate a parent-child relationship.

The wife took the position that despite Crown Wardship not automatically terminating the son’s ability to claim beneficiary status, his estrangement from the father should do so.

In siding with the son on this matter, the court cited case law stating that the estrangement of a sole surviving child from the deceased is not relevant in determining whether the child can be named as a beneficiary of the estate.

Who should act as estate administrator in the meantime?

Before the court determined who would ultimately become the estate’s beneficiary, it had to appoint an Estate Trustee During Litigation (ETDL). The problem was that the two parties involved in the litigation were the only two people who stood to be named beneficiaries and therefore had inherent conflicts of interest as estate trustees.

Because of this, the court stated that a third-party must be named ETDL and it tasked the parties to come to an agreement on who that person should be.

In the meantime, the son was named as the Litigation Administrator of the Estate, and the wife was told to institute proceedings against him in that capacity.

We will be sure to follow this case and provide our readers with an update on how it is handled down the road.

If you are the friend or family member of a testator and are concerned about the appointed trustee or executor, contact Derfel Estate Law. Our Toronto estates lawyers help clients ensure that their interests or the interests of their loved ones are protected, and decisions are being made in the best interests of the estate. Call us at 416-847-3580 or contact us online to schedule a consultation.

For many couples, having a child can be a difficult process due to any number of health issues. Fortunately, modern medicine has made the process much easier for people who need medical assistance with having a child. However great modern medicine is, there are still challenges that couples may face related to having children. A recent decision from British Columbia shows how federal law can prevent someone from accessing reproductive material from their partner after the partner has died. The case highlights the importance of estate planning in order to make the administration of an estate as easy as possible.

Husband dies intestate

The issue was brought to court by a widow (“the wife”) whose husband died suddenly and intestate, meaning he had no will when he died. The couple had been married for three years and had a child together already. The wife stated it was their intention to have additional children.

After her husband’s death, the wife wanted to have reproductive material removed from him which could be used to create embryos to allow for the wide to have a child fathered by him.

The problem with this is that the federal law governing the use of human reproductive material, the Assisted Human Reproduction Act, and its regulations prohibit the removal of human reproductive material from a donor with the donor’s prior, informed, written consent. A judge denied an urgent after-hours motion by the wife, seeking an order that the material be removed from the husband’s body. The judge had the material removed from the husband’s body, but after hearing legal arguments, determined that the AHRA does not allow for the materials to be distributed to anyone, even the wife, without his prior informed written consent.

While unfortunate, the law is clear

On appeal, the court noted that the only issue before it was one of statutory interpretation. The law, as set out in the AHRA states,

Posthumous use without consent

(2)      No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.

The court stated that the law must be read in its entire context and within the spirit of the Act. In this case, the AHRA gives a “clear and unequivocal” prohibition on removing reproductive material without consent. There are no exceptions made within the law, and it applies to all people, including spouses of the deceased. There is also no deference given to courts to work outside of the law. Simply put, while unfortunate, the law is clear in its meaning and must be followed. In addition to there being a prohibition on the use of reproductive material, acting in contravention of the law is a punishable offence. In denying the appeal, the court wrote, “it is uncontroversial that a court must interpret a regulation in accordance with the modern principle and read it concurrently with, and in the context of, the enabling legislation, in order to implement the statutory scheme and give effect to the intention of Parliament.”

The court stated that it regretted having to dismiss the appeal, and recognized the painful and tragic circumstances in which it was dealing.

If you have questions about the administration about an estate you have been appointed executor to, contact the estate lawyers at Derfel Estate Law. We can advise and guide you on all aspects of estate administration, including determining whether or not probate is required, or assisting you if it is. Call us at 416-847-3580 or contact us online to schedule a consultation.

It’s not uncommon for people to leave a part of their estate to a charity they feel close to or value the work of. One of the most important reasons to write a will is to make sure that your wishes, including charitable donations, are followed through. Without a will, your estate would be distributed to your family according to statute, and a charity would receive nothing unless a beneficiary donated something in your name. However, even if you write a charity into your will, it’s important to be specific about what you want to leave to the charity. This can be applied to all instructions in a will, which should be as clear as possible. A recent story published by the CBC shows how a failure to be specific about charitable gifts can lead to will challenges and the litigation that comes with them.

Residue of estate to go to the SPCA

The deceased wrote a will in 2003, which granted the British Columbia SPCA the residue of her estate. When she eventually passed away, the “residue” of the estate was valued at $1.46 million and made up 80% of the estate as a whole.

The deceased’s great-niece said that the will was not an accurate representation of her great aunt’s wishes, stating that on her 99^th birthday in 2017 the deceased wrote a note limiting the portion of her estate that would go to the SPCA, capping the amount to be donated at 0,000. She died five months later, but her will was not updated to reflect the changes expressed in the note. The niece told the CBC “she intended something to go to the SPCA, but not to the tune of $1.5 million.”

Value of home increases the value of residue of the estate

While the deceased left about $400,000 to family members, the residue of the estate was largely the value of her home. Between the years when her will was written, and her death in 2017, her Vancouver home rose drastically in value. The CBC points out that the monetary bequeaths made to her family remained static, but the residue began to take up a larger share of the estate as a whole.

Charity discounts reference to the handwritten note

The CBC story includes a statement from the SPCA, which said,

“There are several relatives who allege that a short handwritten note — unsigned, undated and not witnessed — with a number of names and amounts, represents (the deceased’s) final testamentary wishes. They rely on that note and a meeting (the deceased) had with two friends who came to celebrate her 99th birthday in May of 2017, a time when there were issues with (the deceased’s) mental capacity,”

The deceased’s great-niece said there were two witnesses who saw the note being written and have signed affidavits to support its veracity.

A trial on the issue has been scheduled for January 25, 2021. We will be sure to update our readers on how the story develops.

In the meantime, Derfel Esates Law advises people to work with an experienced estate lawyer when drafting a will. Conversely, if you are considered an application to challenge a will, our experienced estate lawyers can help you determine whether your claim is a strong one,and can help you explore options while also helping you understand your rights and responsibilities. Call us at 416-847-3580 or contact us online to schedule a consultation.

The family home is often the most valuable asset a family owns. When you also consider the emotional ties to a family home, it’s easy to understand why it is sometimes at the heart of estate disputes when there is no clear direction about how the home should be treated in the event of the owner’s death. In a recent decision from the Ontario Superior Court of Justice, the court dealt with a family who could not agree on what should happen to their family home.

A will and a number of codicils

The motion was originally brought by the granddaughter of the deceased, who was survived by her two adult children “Hindy” and “Sandy.” Between her two children, the deceased had five grandchildren. The trustee is the daughter of Hindy. She has a brother named Justin. Sandy has three children, Remy, Amanda, and Maya.

The deceased was married, but her husband predeceased her. When he died in 2017, his will left everything to the deceased, who passed away in April 2019.

The deceased’s will left everything to her husband. However, it stated that if he were to die before he, her estate was to be divided into five parts. Four of the parts were to be equally divided amongst her grandchildren (Justin, Madison, Remy, and Amanda). The fifth piece was to be divided equally between her children, Hindy, and Sandy.

Maya was born after the will was signed, and as a result, the deceased made a codicil, specifying that Maya would be included in the part of the estate that went to the grandchildren, splitting it five ways instead of four.

A second codicil was signed in April 2019, which changed the trustees from Sandy and Hindy to Sandy and his daughter Remy. It also stated that one of the family properties, referred to as Brockington, was not to form part of her estate and that it would be transferred to Sandy upon her death. At the same time, the deceased transferred ownership of Brockington to herself and Sandy as joint tenants. Brockington is the main asset of the estate and was valued at $2 million at the time of the trial.

Son moves in to care for mother

After the deceased’s husband passed away, Sandy moved into the home, saying he did so to care for his mother. He said his sister and her children ignored his mother during this period. However, Madison and Hindy argued that Sandy moved in with the deceased in order to coerce her into signing the second codicil and transfer the property into his name.

Sandy said this simply wasn’t true, and that if it wasn’t for him, his sister would have moved their mother into a care home and sold Brockington.

Court orders are allegedly ignored

A number of court orders were issued before the trial, including orders for Sandy to return $135,000 to a line of credit attached to the home. Sandy was permitted to keep living at Brockington as long as the line of credit was paid, and he paid for the costs associated with the home.

The applicant told the court that these orders were not followed and was seeking an order for the home to be sold while further litigation was pending.

The court agreed, stating that there is money owed by the estate, and the money can only come from the sale of the home. The court said he had been given months to comply with the court orders, but chose not to do so. While the court was sympathetic that the son had to sell the home he was living in, it said ordering him to do so was the only way to move through the issues that had to be resolved.

At Derfel Estate Law our Toronto estates lawyers work tirelessly to achieve the best possible resolution to your will, estate, or trust matter. Call us at 416-847-3580 or contact us online to schedule a consultation.

An a recent case out of British Columbia highlights an interesting topic often seen in estate law. The matter concerned the law as it pertains to separation of spouses and the wishes of the testator. In this case, the two stood in contrast, and the court had to determine which side its judgment should align with.

The law vs the testator’s wishes

The deceased had been in what the court described as a “marriage—like relationship” with “NH” for close to 30 years. The couple had no children together and separated in 2017, almost two years before the deceased passed away. In the deceased’s 2014 will, she stated that if NH survived the deceased, NH is to receive the deceased’s personal property as well as the residue of her estate.

Since the parties separated two years earlier, the will was in contrast with Section 56(2) of the provinces’ Wills, Estates and Succession Act (“the Act”). The Act automatically revokes a testamentary gift to the spouse of a will-maker if and when they cease to be spouses. The executor of the estate sought an order reviving the clauses of the will that gave the property to NH, meaning the executor wanted NH to still receive what the deceased intended to provide her.

The deceased looks at her will following separation

In 2017, following her separation from NH, the deceased met with a lawyer about the issues arising from the separation. She was advised by a friend to revise her will, and to leave her assets to charity. The deceased then instructed her lawyer to draw up a new will.

While the lawyer recognized that the deceased was elderly and had trouble remembering some details of day-to-day life, she was of the opinion that she was capable of making estate planning decisions. However, the will was the item the lawyer left to last (the lawyer also helped with power of attorney and other matters). The lawyers said she was concerned the deceased had been influenced too much by the friend.

After a meeting between the deceased and her lawyer, the deceased advised that she had always wanted NH as her beneficiary, and instructed the lawyer to leave her as one in the new will.

Various witnesses stated that the deceased mentioned on a number of occasions that she intended for NH to be the beneficiary of her estate.

The law conflicts with the testator’s wishes

The issue is that the Act states if a will-maker makes a gift to a person who was or becomes the spouse of the will-maker…, and after the will is made and before the will-maker’s death the will-maker and his or her spouse cease to be spouses under section 2 (2), the gift … is revoked and the gift must be distributed as if the spouse had died before the will-maker.”

However, the Act also states that the courts can revive part of a revoked will if the court is convinced the will-maker intended to give effect to the will or the part that was revoked.

In this case, the court was told that the deceased was not aware that NH would be cout out of her will if it was not-rewritten. The court agreed, adding that the deceased had been adamant about her wishes and expressed them to a number of people.

The court stated,

“Here, because the deceased was unaware of the revocation, her post-separation statements and conduct should be considered from her perspective. To the deceased, all of the terms on the face of the Will constituted the terms of her intended testamentary document. Post-separation, the deceased was aware of the specific terms set out on the face of the Will, and she regarded those terms as existing in fact (i.e., irrespective of their legal effect). She unequivocally, repeatedly, and consistently affirmed the terms appearing on the face of the Will as an accurate representation of her testamentary intentions both after separation and while of capacity. I am left without doubt that the terms on the face of the Will – including the (“NH”) clauses – represent the deceased’s true testamentary intention.”

As a result, the court revived the parts of the will that had been revoked.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

We have blogged a number of times over the years about challenges to the validity of wills. Having a will is an important way to mitigate the likelihood of estate litigation upon your death. It’s important to make sure that a will is written with the assistance of a qualified professional, but as we see in a recent from Alberta, as well as one from Saskatchewan, less-formal wills can still stand up in court.

A will written on a napkin

In a 2020 decision from the Court of Queen’s Bench for Saskatchewan looked at a situation where a father of seven children drafted a will on a napkin at a fast food restaurant. Like Ontario, Saskatchewan law allows for holograph wills, which are drafted in a more casual sense than a regular will. Holograph wills can be 100% handwritten, and so long as they are signed by the testator, they can be considered valid.

In this case, there were some questions about the mental capacity of the father, but those were not found to be reason enough to discount the validity of the will, as the only real evidence to point to a lack of mental capacity was some inaccurate spelling of names.

In this case, the father thought he may have been having a heart attack. As a result, the court found it was natural that he would turn to the question of estate planning. He didn’t die, but he did deliver the will to his daughter. This was enough for the court to find that there was a clear testamentary intention.

A will written on a sticky note

Similarly, a recent decision from the Alberta Court of Queen’s Bench considered a will drafted on a sticky note.

In this situation, the deceased had a will that was written in 1997. Then, four days before he died on March 1, 2018, he wrote a note on two sticky notes titled “changes to my earlier will.” The changes, as described by the court, essentially constituted a new will.

In order for the changes to be considered valid, they had to meet the province’s requirements for a holographic will. Like in Ontario, a holographic will ibn Alberta can be handwritten, and if signed by the testator, can stand as a will. In this case, it did not matter that the will was written on sticky notes. They were signed, and they referenced the 1997 will. They also contained the details needed to understand the testamentary intention of the deceased.

One of the concerns before the court was that one of the beneficiaries had witnessed the will and signed it. However, since a holographic will does not require a witnesses’ signature, the court found that the presence of it did not preclude the witness from being a beneficiary.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

A good will should be written with the intent of limiting the chances of litigation upon the testator’s death, and many wills contain clear, simple language to express the wishes of the person writing the will. Failing to use clear language could result in parties ending up in a situation similar to that in a recent decision from the Alberta Court of Queen’s Bench.

The holographic will

The deceased passed away in 2010 and his six surviving children had been engaged in litigation since then. The court described the situation as “unfortunate” stating the family had been deeply fractured, and relationships had been overtaken by anger and resentment.

The will in question was a holographic will, meaning it was handwritten by the deceased. It was not witnessed but was dated December 1, 1995. The family agreed that the will was the last will and testament of the deceased. One section of the will stated that one of the children “WKJ” can “can live in the house for awhile to be determined by Him and his brothers + sisters.”

What does “awhile” mean?

WKJ and one of his brothers (“JK”) argued it was their father’s intention for him to remain in the home indefinitely. JK said that his father believed nobody should be displaced as the consequence of a loved one’s death. Instead, he said his father thought that things should stay the same after a death.

WKJ said that his siblings knew it was their father’s intention to leave the home to him to live in, even though he wouldn’t own it, referencing conversations they had as a family.

The other siblings argued that “for awhile” meant that WKJ could live in the house for a short period of time, long enough for him to get his affairs in order so the house could be sold and the proceeds divided amongst the children.

The court’s analysis

The court tried to determine the intentions of the deceased by looking at the ordinary meaning of the words in his will. The court found that it was clear the deceased wanted his estate to be equally divided amongst the family, and that his intention was to allow WKJ to live in the house after his death, “but only for so long as was agreed upon by all of the surviving siblings.” In this case, since the children could not agree on how long WKJ should be able to live in the house for, it had become time for WKJ to vacate it since the siblings clearly were not all in agreement that he could stay.

Wills can be challenged or contested by anyone who believes they have a financial interest in an estate. If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.