Legal Grounds For Will Challenges The loss of a loved one can be a devastating and overwhelming experience. While mourning a loss, you may find yourself scrambling to ensure that all of your family’s affairs are in order, especially if you are listed as an Executor, Administrator, or Trustee of an Estate or Trust for the deceased. However, many individuals have also experienced being left out of the deceased’s will and believe that they are entitled to a share. If someone comes to that realization, it is difficult to determine where to begin, as the law surrounding challenges to a will is complicated. Devry Smith Frank LLP’s (DSF) Estates Litigation lawyers are able to advise clients on how to proceed with your matter and provide advice and support from start to finish, looking out for your best interests, to achieve the best result when challenging the validity of a will. There are three common types of legal grounds on which you may challenge the validity of a will: If the will fails to comply with the Succession Law Reform Act. Ontario requires full compliance with the formalities of execution. Wills prepared by legal professionals will comply with these rules, while a majority of home-made ones do not. If the deceased had the capacity to make the will. Did the deceased know what property and assets they have and that the will would be disposing of these assets after their death? Did they have a true understanding of any obligations they may have to spouses and children? A challenge on this ground would require hiring expert medical witnesses to review medical records and retroactively assess the deceased’s mental capacity at the time the will was made. Whether there were any suspicious circumstances surrounding the drafting of the will or whether the deceased was under any undue influence. The will must represent the true intentions of the deceased. Undue influence can occur when a person feels compelled to honour the wishes of someone making a direct or implied threat, or attempts to leverage a person’s weakened state to their advantage. A child convinces a parent to remove a sibling from the will. A will signed on the deceased’s death bed leaving everything to a caregiver may give rise to a challenge on the grounds of suspicious circumstances. If you are experiencing any of the issues mentioned above, it is important to seek qualified legal advice from an Estates Litigation lawyer. For further information or assistance, please contact our office directly by calling (416) 449-1400 or emailing info@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesMay 16, 2018July 5, 2023
When Does an Executor Pass their Accounts? A passing of accounts is essentially an estate audit. Much like the CRA can pour over your tax returns with a fine tooth comb, a beneficiary, and later a judge, can review your estate accounting. This is because an executor is required to account for his/her actions to the beneficiaries. However, there is not always a requirement for a trustee to go through the formal process of passing the estate accounts. In many situations, where there is no concern over the actions of the trustee or the estate is small in nature, the trustee simply keeps his estate accounts and the beneficiaries informally approve them. In my experience, more than 85% cases never require a formal passing of accounts. Yet, in some more complicated or contentious estates, a beneficiary can compel the estate trustee to pass the accounts by obtaining a court order. There are many reasons why a beneficiary may require an estate trustee to pass his or her accounts. For instance, if there is a lack of disclosure or communication from the estate trustee, if the beneficiary objects to certain transactions performed by the estate trustee or if the beneficiary objects to the amount of compensation claimed by the estate trustee. Often, a request for an order requiring an estate trustee to pass his or her accounts is sought along with other relief, such as a request for an order removing and replacing the estate trustee. In some cases, the estate trustee may also apply voluntarily to pass his or her accounts. There are several reasons why the estate trustee may wish to pass his or her accounts. First, the passing, if approved, exonerates the trustee from any liability with respect to the accounts (fraud and other errors are exempt). Secondly, it allows the estate trustee to take his or her compensation when the consent of the beneficiaries cannot be obtained. If you are an executor struggling with beneficiaries who are uncooperative, voluntarily passing your estate accounts is something worth considering. As a general matter of practice, the estate trustee should always maintain accurate and up-to-date accounts so that an accounting can be provided if requested or required. If you have any questions or concerns, please contact our Estates Litigation group or call us directly at (416) 449-1400 to speak with an Estates Litigation Lawyer today. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesApril 16, 2018June 16, 2020