Wills and EstatesWills and estates cases typically involve either an application to vary a will, contesting the capacity of the willmaker or if they were subject to undue influence when they made their last wishes known. Other cases may involve challenges to the priority or lion’s share of an estate by a former partner, or a new partner. These cases can also arise prior to the death of a family member. An older adult experience dementia or other neurological diseases may also find themselves to be the subject of an application by daughter or son, or other loved member to have them declared to be a “patient” under the Patients Property Act . Sometimes called the civil death penalty, if so pronounced then the person who is subject to this order loses the ability to make their own choses and cannot manage their accounts or other property anymore and a committee takes on that role. Patients Property Act cases are also called committeeship cases. Transactions done by these adults in favour of one child but not the other may be similarly challenged on the basis of undue influence or lack of capacity.
While family cases can sometimes be thought of as the story of two strangers falling in love then falling out of love and having to deal with the repercussions, wills and estate cases are the culmination of a lifelong history of dispute and friction with family members. Further, regardless of the outcome of any outcome in a wills and estate cases, the other people involved will often continue to be your family members. The combination of acrimonious family dynamics, along with either the death, or the medical decompensation of a loved one make these cases uniquely challenging. In addition to dealing with the financial aspects of a wills and estates case, often a form of therapy or counselling are recommended to deal with the conflict between family members, or learning for instance that you were disinherited by a parent.
The law presumes an adult to be competent and able to make their own decisions. However the law also imposes a moral obligation to make just and adequate provision towards one’s spouse and children. If a will fails to make adequate provision for you, then it may be subject to a wills variation action simply on the basis that it fails to do so – regardless of any issue with the will maker’s testamentary capacity or any allegation of undue influence. Ascertaining the reason for why a child or spouse was not given adequate provision, or completely excluded and disinherited from a will can be a significant task and will almost certainly be disputed by the other side. Another aspect that makes these cases challenging is that the reason for cutting someone out of a will can be the culmination of reasons that occurred over the course of many years, and since the disinherited child or spouse will not know that they were disinherited until after the will maker dies, obtaining documentary evidence to bolster your case may be difficult or impossible just given the passage of time. Many wills cases thus rely heavily on collateral witnesses, such as friends and extended family, to act as reliable historians.
In cases involving questions of capacity we have a network of medical professionals that can give historical opinions about a person’s capacity. Often a large volume of medical records and diagnostic tests, such as Montreal Cognitive Assessment (MOCA) and Mini Mental State Exam (MMSE) can be obtained to determine the level of a person’s functioning, which will still often need to be bolstered by the opinion of a care provider, whether that be someone in a nursing home, or a close friend or family member.
Cases where a will is challenged on the basis of undue influence are perhaps the most challenging. They also can have severe cost consequences if you are unsuccessful if proving the allegation of undue influence. The work to establish a case of undue influence can be compared to having to reconstruct a crime scene. There will unlikely be a smoking gun, but the culmination of a detailed and thorough investigation can be enough to show a pattern of conduct that can allow a will to be thrown out on this basis.
In committeeship, or Patients Property Act cases the reason for the application will likely be a dispute between family members as to how to manage the life of an adult who is unable to take care of themselves as a result of a neurological disorder – such as Alzeheimer’s disease. There may also be issues where one family member believes that another may be using an existing Power of Attorney or Representation Agreement to essentially rob their aging parent’s estate early. Unlike wills cases, where the person is deceased and cannot give any evidence or clarify, the person in a committeeship proceeding is still alive and the law recognizes different levels of capacity. A person may still be a patient under the Patients Property Act but may still be able to execute a Nomination of Committee and otherwise indicate their wishes and preferences.
In both wills cases and estate cases, the passage of time and the record retention policy of third party record holders, such as hospitals, doctors, banks, and credit cards, will generally require swift action to preserve as many documents as can be captured at that point in time. Text messages between yourself and other family members need to be screenshot, saved and backed up, or the contents of your phone digitally downloaded.
There will almost inevitably be certain records that you recall that could help or hurt your case that you will not be able to find, be it old photographs, Christmas cards, and other writings. However, particularly in wills cases, there will also be a number of collateral witnesses who may have records about the person’s capacity, beliefs, and reasons for writing their will the way it was. This may include care providers, doctors, close friends, and the notary and lawyer who executed the will. Some witnesses may cooperate freely, and others may need a Court order before they are willing to share their recollection and observations. Witnesses should be tracked down early in a file and have their evidence reduced down to writing as much as possible. Witnesses may move or even pass away themselves before you are able to have your day in Court.
In wills cases, there are important deadlines to meet if you want to challenge the will. If you do not meet them, then you will almost have no recourse. For committeeship cases, the opinion of two medical professionals are necessary before an individual can be declared a “patient” under the Patients Property Act and a committee appointed. When there is a dispute about a person’s ability to manage themselves or their affairs, independent medical examinations are often used. Where there are concerns about misappropriation of money, we have a network of accountants and other financial professionals that can assist with tracing and accounting.
The right strategy to challenge or vary a will, or to obtain or resist committeeship will depend upon the unique circumstances of your case, however typically the more documents and witnesses you have, the better of a position you will be in.
Our Estate Planning Lawyers assist beneficiaries under a will, and those that have been disinherited to vary wills, or challenge them on the basis of undue influence, lack of capacity, or failure to follow the execution requirements of the Wills, Estates, and Succession Act – affectionately known as WESA. Our involvement often begins when a copy of the will has been provided to a disgruntled individual who feels that what they have been provided is not fair. However a will is only part of a person’s estate plan and we look to discover the full scope of their financial affairs. Some portion of an estate plan are difficult, but not impossible, to challenge, such as successor or beneficiary designations in a RRIF, RRSP, or a TFSA, or the passing of property by way of joint ownership.
We will work with you to quickly obtain the necessary records to determine the feasibility of the various routes available to you to get a different distribution, however some records may be difficult to disclose prior to commencing a court proceeding, particularly, if you are not the executor under a will, or the administrator if there was no will.
If there is property that has been transferred as part of the estate we will commonly obtain instructions to get a Certificate of Pending Litigation placed on title to prevent its sale, or if it has been sold, to try and freeze the distribution of the net proceeds while your claim is being advanced. In appropriate cases, it may be possible to obtain an interim distribution for your portion of estate that is not being challenged. For instance, if you were given a 10% share of the estate as a spouse, but want to challenge it and say that should have been 75%, then often the 10% share can be obtained without you giving up your ability to contest for a larger amount.
Wills and Estate cases require further assistance on document gathering and investigation than many other types of cases. After obtaining the necessary medical and financial records and collateral witness statements, whether voluntarily or through Court order, we have a network of doctors and accountants that can provide the necessary opinions to identify your odds of success, and also the amount that you could obtain if successful. If by this point your case is quite strong, it may be worthwhile to attempt to resolve your matter without continued proceedings. Court proceedings are acrimonious by nature and can deepen the divide in a fractured family. Resolution can be accomplished through offers of settlement, mediation, or through a more private process such as arbitration.
For committeeship cases, we assist in securing the necessary medical opinions, independent medical examinations, and tracing and accounting orders where there concerns about financial impropriety including misappropriation of funds, or “pre-takes”. Committeeship cases can also evolve to highly contested matters, akin to disputes about guardianship and custody of children in family cases. If your case progresses to this point a multi-week trial is possible and we will of course run the case all the way through trial.
Wills and Estates cases are often document heavy and our firm will work diligently to obtain records from third party record holders, such as hospitals and caregivers, but you will also have an important role to play in preserving evidence and identifying key witnesses to corroborate your position that only you have access to. Some examples of those records include e-mails, social media communications, and text messages. A wills and estate file is one in which you will be heavily involved in. While the law is relatively settled in these areas, the factual disputes are just as important to succeeding in your claim and getting the outcome you want.
If there are assets that form part of the estate that may transfer to you if you are successful we will quickly work to get those secured by way of a Certificate of Pending Litigation or another order to ensure you do not end up with a hollow judgment.
You also have an important part to play in providing information about the other parties, such as their risk tolerances, ability to finance litigation, and perhaps even knowing their negotiation tactics. However the size of the estate will also provide a realistic cap on how much work can be justifiably done. An estate worth $100,000 cannot possibly justify lawyers on both sides spending that much on legal fees, while an estate worth $5,00,000 certainly can.
The speed of progress on your file will depend in part on how co-operative the other side is. If they are willing to voluntarily provide critical information then that will save considerable time and expense compared to getting a Court order to produce the same documents. If the information requires an expert, such as in cases of a business that needs to be sold as part of an estate, then we will recommend that you engage one within our network that we have experience with and who we know will testify properly at Court.
Committeeship cases often involve much of the same work that would go into custody disputes which involves consideration by the Court as to how you will manage to keep the other party involved in the decision making process and update them as to financial and medical matters. We will work with you to ensure that your communications will not give any ammunition to the other side to portray you as an unsuitable candidate for committee.
If there are concerns about elder abuse, or if loved one is showing signs of medical decompensation as a result of a neurological disorder or otherwise, we will look towards protective orders under either the Adult Guardianship Act, or an assessment under the Mental Health Act.
Wills and Estates cases are unique in that there are strong policy reasons for awarding special costs to a party who brings a proceeding in good faith. An award of special costs can typically cover 75% of your actual legal fees or more.
Wills and Estates cases are done on either an hourly basis, a mix of a partial hourly and partial contingency, or a full contingency. Given our experience, it is very difficult to estimate at an early stage the amount of work that will need to occur before a case gets resolved, whether by agreement or by trial. As a result, no flat fees services are offered in this area of law.
Contact us either at (604) 259-6200 or using the form below for assistance with Wills and Estates
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.