Toronto Estate Litigation Lawyer
Challenging a Will is a big, difficult decision. That’s why selecting the right Toronto Estate Litigation lawyer is critical. Challenging a Will is sort of like preparing for a marathon: it may involve beneficiaries, guardians, executors, trustees, and Estates lawyers.
There may also be dependents who were not properly provided for under the Will (dependent’s relief claims).
Due to the passing of a loved one, emotions are typically running high. There may be difficult personalities involved as well.
The road to challenging a Will is long and winding. Selecting the right Toronto Estate Litigation lawyer like Christoher Stienburg is paramount because challenging a Will typically takes years to resolve.
You want a Toronto Estate Litigation lawyer who will properly advise you, is a great communicator, and of course is knowledgeable in Trust and Estates Law.
And you want a lawyer who is compassionate and understands the stress you are experiencing while challenging a Will.
Here is the Ministry of the Attorney General’s Glossary of Estate Litigation terms.
Click on our Useful Links Page, for useful Estate Litigation resources.
Toronto Estate Litigation Services
- Allegations of Abuse of Powers of Attorney (POA)
- Breach of Trust Actions
- Challenging a Will
- Defending a Will
- Dependant Support and Relief Claims
- Defence of Solicitor Negligence
- Estate Trustee problems (breach of fiduciary duty)
- Mediation and Alternative Dispute Resolution
- Passing of Accounts
- Quantum Meruit Claims
- Trustee/Executor Disputes
- Unjust Enrichment Claims
- Variation of Trusts
Who has Grounds for Challenging a Will in Ontario?
Importantly, the first hurdle in challenging a Will is to determine if, in fact, you have legal standing to do so. This legal threshold is set out in Ontario’s Rules of Civil Procedure, Contentious Proceedings, Rule 75. Rule 75 sets out the procedure concerning claims against an estate.
The companion rule, Rule 74, sets out the procedure for dealing with non-contentious issues of an estate. Your Toronto Estate Litigation lawyer Christopher Stienburg can advise you of your legal rights, and suggest the best way forward.
Reasons for Challenging a Will in Ontario
Speak to Christopher Stienburg, a Toronto Estate Litigation lawyer, to see if you have a valid claim about challenging a Will in Ontario. In general, there are six reasons why a Will can be challenged:
- You believe the Will is fraudulent—or even forged.
- The Will was not executed legally, meaning it was not signed in front of witnesses in the legally prescribed way, to make it a valid Will.
- The testator—the person making the Will—lacked knowledge and approval of the Will’s contents. To make a valid will, a person must be “of sound mind, memory and understanding.”
- You believe there was ‘undue influence’ exerted on the testator to sign a Will that bequeaths particular assets to specific people using undue influence, coercion, threats, or other means.
- The testator lacked testamentary capacity and may have suffered from dementia or Alzheimer’s. “S/he didn’t know what s/he was signing, or even that s/he was making a Will.”
- The Will failed to provide adequately for a surviving spouse, children or other dependents, especially minor children or adult disabled children.
Invalid Reasons for Challenging a Will
It is important to understand that there are also grounds that are insufficient for challenging a Will. Invalid Will claims include:
- If the deceased promised you money, property, physical assets, or personal effect of sentimental value that was not written down in the Will;
- If you believe the Will treats you unfairly; or
- If the deceased wrote her/his own Will, used a Will Kit, or online Will writing software.
In Ontario, a Will does not have to be fair and treat all beneficiaries equally. In the same vein, fairness is not a legal threshold that is legally defensible. Christopher Stienburg, your Toronto Estate Litigation lawyer, can advise you if your claim to challenging a Will is valid.
How Testamentary Capacity Affects Challenging a Will
For the first time in history, Canadians are living long enough to lose their mental faculties. The rates of dementia and Alzheimer’s affect testamentary capacity and therefore play a significant role in challenging a Will.
It’s called the ‘Rising Tide’: annually, there are about 76,000 new cases of dementia diagnosed in Canada, according to the Canadian Chronic Disease Surveillance System (CCDSS).
One in four seniors aged over 85 is diagnosed with dementia.
About two-thirds of Canadian seniors living with dementia are women.
Christopher Stienburg, your Toronto Estate Litigation lawyer, can give you specific advice if a loved one has been diagnosed with dementia and how that affects challenging or defending a Will.
Contact us for a consultation at (416) 601-6801 or submit a callback request.
Let us know what you would like to discuss and we will call you back Monday to Friday between 9 AM and 5 PM once we have reviewed your situation.