Contesting Wills In AlbertaJeff Kahane2020-08-29T16:56:37+00:00
Disputing Wills In Calgary And Edmonton
Many people want to leave a legacy for their family. For example, a parent or grandparent want to ensure the next generation enjoys an advantage in life. In other cases, people lack a specific intention other than to direct where their assets go once they pass away. Each year, family ignores those wishes and beneficiaries or potential beneficiaries need to take the unfortunate step of contesting wills in Alberta. This happens for many reasons. Read below to learn more about contesting wills in Alberta. In order to make things clear, a testator, is the person who created and signed a will. Kahane Law Office, in both Calgary and Edmonton, assist clients with ensuring that everyone respects a loved one’s last wishes.
Why Contesting Wills Occurs
The reasons for contesting wills is vast. The person named in the will as personal representative, formerly known as an executor / executrix, fails to follow the wills direction. For example, negligence, laziness and fraud each sometimes occur. Specific examples that lead to disputing wills is as follows:
The testator excluded dependent children, spouses or other family members;
Excessive executor / personal representative compensation;
The testator created a new will when he or she lacked capacity due to illness, pain, undue influence, medication or medical condition;
A verbal agreement existed to include a person in a will, however, the will failed to name the person;
Uncertainty as to the “current” valid will;
The distribution of assets in the will is unfair as to proportions given; and lastly
Drafting or execution errors in the will cause ambiguity, uncertainty, in invalidity of all or part of the will.
Parties Able To Contest Wills
In general, only certain parties have the ability for contesting wills. Foremost, is the relationship between the person looking to dispute the will and the testator. For example, the parties who commonly have grounds to dispute a will include:
Minor children of the testator;
Adult children of a testator;
Spouses and / or former spouses;
The beneficiaries if a person dies intestate;
Trusties for any of the above;
The Public Trustee on behalf of any of the above; and lastly
Any person with a legal, contractual, equitable or beneficial interest in the estate.
Grounds for Disputing Or Contesting Wills
In law, a party requires grounds to sue or ask the estates court for relief. Grounds means that there is a legal reason that an individual has a claim against the estate. Many grounds for contesting wills exist. For example, these include the following:
An Improperly Executed Will
An improperly executed will lacks validity. Wills require the testator and two witnesses (witnessed at the same time) at the end of the will. No provisions in that will work as intended if improperly executed. As the courts always attempt to follow the last, legal wishes of a testator, invalidity is looked at closely. Further, at times the invalidity only affects a portion of the will. In these cases, a person may challenge that portion of the will. When a will is invalid, one of two things happens. The previously executed valid will comes into play. Alternatively, when there is no other will, the estate follows the intestacy rules. This means that the intestacy laws in Alberta determine the beneficiaries.
Lack Of Mental Capacity
The law requires that a person understands both the effect of signing a will and the provisions of the will. If they lack mental capacity, the will is invalid. The consequences of this invalidity is the same as above section on improper execution. Although medical professionals often determine mental capacity, the term is a legal one and not a medical one. Essentially it involves evaluating if a person had the ability to understand exactly what they were doing when signing a will. This understanding include a knowledge of their assets, who they leave them to in the will, the people in their life to share their estate will, legal or moral obligations, etc. Many situations lead to mental incapacity. For example, these include: dementia, Alzheimer’s, extreme pain, certain medications, delusions, intoxication, delusions, certain psychiatric conditions, etc.
Most often people end up contesting wills under this category when a friend, family member or health care provider, convinces the testator to exclude the family from some or all of the will and include this person instead. In these cases, the court looks at dramatic sudden changes to the will, the vulnerability of the testator, and the circumstances or access of the person accused to the testator. In addition, the court looks at the circumstances of the drafting and execution of the new will. For example, was the new will a holographic will or signed with a lawyer.
Ambiguity Or Interpretation Issues
In some situations a will lacks clarity. For example, an asset or potential beneficiary is indeterminable. The executor or the court must be able to understand the intention of the testator.
Contesting Wills Due To Fraud Or Forgery
Fraud usually occurs when a beneficiary is unhappy with a new will a person executes. Knowing this, that person destroys the new will, pretending that it never existed. In other cases, someone forges a will and passes it off as one created by the deceased. In one instance, our firm represented an estate where we required handwriting comparisons to prove the will. Other examples include, falsified changes to existing wills, fake codicils and forged changes to a will.
The best example of this type of challenge, includes situations where a person enters into a pre-nuptial agreement, post nuptial agreement, or cohabitation agreement. Part of the terms of these contracts may include a provision for financial support after the passing of one party to the agreement. If that person’s will fails to provide for this contractual obligation, the other party has the right to contest the will.
Excluded Spouse Or Dependent
The laws in Alberta protect dependents and spouses. While provisions exist for excluding or cutting someone off from the will, this often leads to challenging wills under this ground. The ground, created by law, is intended a a public policy reflection that people have an obligation to look after the people who depend on them.
Technicality / Drafting Errors Or Flaws
Sometimes mistakes happen. Unfortunately, mistakes in wills often lead to people contesting wills in Alberta. The simple error of inadvertently deleting a word or sentence from a will could invalidate the will. Alternatively, it may invalidate a specific provision of a will including a specific gift or beneficiary. While not a guarantee, hiring a lawyer to draft your will often protects you and your estate.
Timing For Disputing Wills In Alberta
Ideally, disputing or contesting wills occurs before the court issues a grant of probate. While not fatal to an application to thAlberta e challenge, it makes the most sense as it is before the distribution of assets. At times, a beneficiary, or potential beneficiary, has no notification of the passing, or probating of the estate. In this case, contesting the will is not possible prior to probate.
Process To Challenge A Will
Applications to challenge a will start with a demand letter. These letters put the executor on notice that you claim an interest in the estate. Often this is enough to resolve the issue. If the executor fails to address the issue, then filing and serving a statement of claim starts the court process. If the parties fail to negotiate a settlement, then the court adjudicates the dispute.
Reasons People Do Not Challenge Wills
Once again, many reasons exist as to why a person decides not to challenge a will. For example, these include the:
Insufficient assets in an estate to make the fight worth while;
The estate litigation lawyers at Kahane Law Office represent both estates and beneficiaries when clients face contesting wills in Alberta. We understand the stressful and emotional nature of such disputes. We provide you with legal advice specific to your situation and respect your decisions to dispute, settle or, walk away from a potential claim. If you wish to learn your legal rights or the legal rights of an estate you act for as executor or personal representative, connect today. Email allows for a quick connection to our estate litigation team. Please let us know some brief details in your email. Please email us directly here. To call us, call our Calgary office at 403-225-8810 or call us in Edmonton (780) 571-8463.