A number of different legal issues and disputes may arise with wills and estates after a person dies, such as the will being challenged or claims being made against the estate.
When a person dies with a will, spouses and children may challenge that will for not providing at all or inadequately providing for them in the will through the Wills Variation Act.
When a person dies without a will, this is called an intestacy. In an intestacy, the deceased’s assets and property are distributed according to a fixed statutory scheme which is set out in the Estate Administration Act. This Act generally distributes the deceased’s assets to the closest family. One dispute which may arise is whether a person would qualify as a common-law spouse under the Estate Administration Act in order to receive part of the estate in the situation of an intestacy.
Also, in situations where there is a will and where there is not, unrelated parties may make claims against an estate, such as creditors or claimants with outstanding law suits against the deceased.
Our law firm can also assist you with issues involving contested estates before or after a probate order is made. Before probate is granted, there are legal tools that can be used to prevent steps from being taken with an estate while an estates dispute is being resolved. For example, a caveat can be filed in court which notifies the court not to allow probate to be granted or proceedings to be taken with a will or estate without notice to the caveator. Caveats are filed after death but before a grant of probate has been made.
While caveats can stop action from being taken with an estate, a citation can be used in situations where an executor is not taking steps to administer an estate. A citation requires an executor to take some action with respect to an estate.
There can also be disputes about the validity of a will on the basis of various factors, such as the testator not having mental capacity to make a will when he did, or the will being made with undue influence or under suspicious circumstances. When the validity of the will is in issue, a will for probate to prove the will in “solemn form” to protect the will from being challenged in court in the future can be made.
After probate is granted, other issues may arise, which require a grant of probate or letters of administration to be revoked, such as when the person who was granted probate, the “grantee” dies, goes missing, becomes incapacitated, or where there was misconduct in administering the estate. Also, again after probate is granted, a citation may be used to require the executor to take some action with respect to an estate.