What is estate litigation?

Estate litigation generally refers to legal proceedings to resolve disputes over the assets of a person who has passed away. Most often, this involves challenges to a will, either to have it varied or to have it declared void.

A will can be determined to be void if the will-maker was mentally incapable of making the will or because a beneficiary exerted undue influence over that person. Estate litigation can also involve challenges to others interfering with a person’s assets before that person passed away. This type of claim most commonly involves the elderly.

How do I prevent or resolve estate disputes?

The best way to prevent disputes over your estate is for you, with your lawyer’s help, to take steps to ensure that you have done the proper planning while you are alive to make sure that your wishes for the distribution of your estate are honoured after your death. This can involve the preparation of proper wills, trust documents or other estate planning tools.

If you are involved in a dispute over someone else’s estate, such as a dispute over the entitlement to their assets, there is usually no choice but to start legal proceedings. With the assistance of an experienced lawyer, most estate litigation is resolved through negotiation, whether informally by way of negotiations between lawyers, or in a more structured way through mediation.

Who pays for estate litigation?

In some way or another, everyone involved in the dispute pays for estate litigation. The party that starts the litigation (the plaintiff) will need to pay their legal fees to start the lawsuit and to proceed through the litigation stages to trial, if necessary. The defendants will usually have to hire lawyers of their own to defend the claim, and the estate itself (through the executor) may have to hire its own lawyer to ensure that the estate’s interests are protected. Any legal fees that the estate incurs are paid for out of the assets of the estate.

If the matter proceeds to trial, the successful party is normally entitled to their costs of the litigation. “Costs”, however, are not a full repayment of the successful party’s legal fees – only a portion of them. Ultimately the issue of whether to award costs to any party (even the successful party) falls within the court’s discretion and is dependent on many factors.

How much does estate litigation cost?

Estate litigation, like all litigation, is not inexpensive. You'd have to be prepared to spend in the tens of thousands of dollars or more if a matter goes to trial. This is why it is very important to have a capable and experienced lawyer to help you resolve a dispute either before trial or outside of the litigation process altogether.

Are there any alternatives to estate litigation?

A dispute involving entitlement to the assets of a deceased person usually involves the commencement of legal proceedings. Nevertheless, with the assistance of experienced counsel, most estate litigation can be resolved through negotiation and/or mediation, which is much more cost effective and results in a much more timely resolution.

Does estate litigation mean going to trial?

The court makes a decision on the issues raised in a lawsuit at the end of a trial. Litigation (in other words, a lawsuit) is started by filing a document with the court called a notice of civil claim. There are several steps in between filing that document and going to trial. Going to trial should always be a last resort. Most lawsuits settle before trial, whether through negotiated settlements or through mediation. Settling estate disputes is much more cost-effective and is a faster way to resolve disputes than proceeding through the litigation to trial.

Do I need a lawyer for estate litigation?

Estate litigation normally involves complex court procedures and complicated legal concepts. Both the litigation process and the specialized nature of estate litigation are very technical in nature. While it may be possible to do it without the aid of a lawyer, it's strongly recommended to have a professional assist you who understands and is very experienced with the process.

What can I do if the executor is not following the wishes of the deceased?

A beneficiary can apply to court to have an executor removed, especially in circumstances where the executor is unreasonably delaying the administration of the estate or is not acting in the best interests of the estate. If the court finds that there is a sufficient reason to remove an executor, the court will appoint an administrator (whether that is one of the parties to the litigation, a lawyer who is unaffiliated with any of the parties, or a professional administrator such as a trust company). The job of the court-appointed administrator is to ensure that the estate is administered and concluded in the most efficient and timely way possible.

Who can challenge a will based on unfairness?

The only parties that can challenge a will on this basis are the children or the spouse of the deceased. Sometimes, issues as to whether someone is a child or spouse of the deceased need to be determined before that person can proceed with a challenge to the will.

When will a court find that a will is unfair?

Where a deceased person has treated their children differently in the will or where the deceased has not adequately provided for their spouse, the court could find that there are grounds to find that the will is unfair to one or more of those people. The court takes various factors into consideration in making this determination, and each situation is decided on its own specific facts.

For example, if a deceased parent made a decision to exclude a child from their will because that child had been estranged from the parent for a long time, or because that child received significant money or assets while the deceased was alive, the court could find that excluding that child from the will is fair and it could refuse to vary it. These situations are often quite complicated, and many other factors are considered by the court in determining whether a child or spouse has been treated unfairly under a will.

What should I do if I believe I have reasons to challenge a will?

The first thing to do is to contact a lawyer who is experienced in the area of estate litigation. A capable and experienced estate litigation lawyer will be able to help you determine whether there is a basis for you to challenge a will. Your lawyer can also give you an idea of the range of costs that could be involved in you doing so and will also be able to provide you with other practical advice to assist you in making your decision. If, after consulting your lawyer, you wish to proceed with a claim challenging the will, whether due to unfairness, incapacity or undue influence, your lawyer can assist you in navigating through the complex task of doing so.

Can I challenge a will after probate is granted?

A granting of probate is a court process whereby the court determines that a will is valid and can be administered in accordance with its terms. Before the court will issue probate, notice must be given to every beneficiary or potential beneficiary under the will and any of those parties can file a notice of dispute, which stops the probate process until the dispute is resolved.

Once a will is probated, the executor is allowed to distribute the assets as provided in the will. For this reason, it is best to start the dispute before the will is probated, but it is also possible to challenge a will after probate is granted. Whether or not probate has been granted, it is important to start the dispute process as soon as possible to ensure that the assets have not already been distributed.