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Tel: 416.927.0891
Email Us: hollaman@dicksonlawyers.com

ESTATE LITIGATION


CONTESTED WILLS

Common challenges to the validity of a Will are:

  1. The Will was not properly executed;

  2. The Testator lacked testamentary capacity;

  3. The Testator did not have knowledge of or approve the contents of the Will; and/or

  4. The Testator was unduly influenced by an individual into signing the Will.

Hollaman Estate Litigation acts for both Estate Trustees who are defending a challenge to a Will, and individuals who are challenging a Will.

We guide individuals or Estate Trustees through the Will challenge litigation process. Given the high emotional costs associated with a Will challenge, we encourage mediation wherever possible.


WILL INTERPRETATIONS

There are times when the intentions of a Testator are not expressed clearly in the Will document. Where such situations arise, an Estate Trustee may apply to the Court to have judicial assistance in interpreting the Will to ensure that the distribution of the Estate is made properly.

Hollaman Estate Litigation will assist in making an application to the Court to have a Will interpreted where there is a disagreement among the beneficiaries or other interested parties as to the meaning of the Will document.


TRUSTEE DISPUTES

Where more than one Estate Trustee is appointed, disagreements may arise as to how the Trust is to be carried out. In other situations, one Trustee may be dragging his or her heels and holding up the administration of the Estate. Such situations may result in Co-Trustees or even the beneficiaries bringing proceedings before the Court for the removal of a Trustee.

Where the removal of a Trustee is required, Hollaman Estate Litigation will assist in bringing such applications before the Court.


VARIATIONS OF TRUSTS

A Trustee of a Testamentary Trust must carry out the terms of the Trust as set out in the written Trust document. However, there are certain circumstances wherein the beneficiaries of a Trust may need to vary the terms of the Trust and will consent to same. Where beneficiaries are minors or persons under a legal disability, the Court must approve of any variation of the Trust.

In such circumstances, Hollaman Estate Litigation will assist in preparing the necessary Court documentation and taking the matter before the Court to seek the variation of the Trust.


PASSINGS OF ACCOUNTS

Estate Trustees, Trustees of inter vivos Trusts, Attorneys for Property and Guardians of Property are all required to maintain records of their dealings with the assets of another individual under their control. These requirements are set out in common law and under legislation. Such responsibility often leads to the requirement to prepare an Accounting and provide same to the Court for scrutiny and approval. Sometimes an Estate Trustee may decide to pass his or her Accounts upon the winding up of the administration of an Estate.

Hollaman Estate Litigation will assist Estate Trustees, Attorneys for Property, and Guardians in preparing their Accounts and presenting them to the Court.


DEPENDANT SUPPORT CLAIMS

Even though Testators are free to name their beneficiaries in their Will, Ontario legislation does put certain restrictions on that right where adequate provision has not been made in the Testamentary document for the support of the Testator’s dependants. The Succession Law Reform Act allows a dependant (usually a spouse and/or children) to initiate proceedings to seek support from the Estate.

Hollaman Estate Litigation will act either for the Estate Trustee in dealing with such a claim, or will act for the dependant in bringing an Application to make a claim for support from the Estate assets.


CAPACITY LITIGATION


GUARDIANSHIP APPLICATIONS

Where a person is incapable of managing his or her property, another individual or Trust Company, where applicable, may bring a Guardianship Application under the Substitute Decisions Act seeking an Order allowing them to manage the assets of the incapable person for the benefit of the incapable person.

Hollaman Estate Litigation will assist in preparing the necessary Guardianship application materials, fulfilling the need to show incapacity on the part of the individual over whom Guardianship is sought, and setting out a plan for the care of the incapable person’s property in the form of a “Management Plan”. As such documentation is required to be served upon the Public Guardian and Trustee for approval, Hollaman Estate Litigation will take such steps and will present the Guardianship Application to the Court for its ultimate approval.


POWER OF ATTORNEY DISPUTES

An individual may appoint an Attorney for Property pursuant to a Power of Attorney document. However, there often arise disputes amongst family members as to the proper use of the Power of Attorney appointment and sometimes allegations of financial abuse arise. These situations often result in such disputes being brought before the Court in the form of an Application.

Hollaman Estate Litigation will assist in either bringing or defending such challenges to the use of the Power of Attorney. Given that such disputes are often amongst family members, the goal of Hollaman Estate Litigation is to resolve their issues as quickly as possible.


MEDIATION


Mediation is an important vehicle for assisting people to settle their disputes outside of Court. A Mediation can be held at any time in the litigation proceedings, and as such, can help resolve disputes involving Estates, Guardianships or Accountings in an expeditious and less expensive manner.

Lisbeth Hollaman has acted as a Mediator on numerous occasions and is available to conduct mediations to help parties resolve their differences.

 

LATEST PUBLICATIONS

CLIENT CONFLICTS AND THE ESTATE LITIGATOR