What do you do when disputes arise over Estate-related matters?
Estate litigation refers to legal proceedings that take place to resolve disputes arising from matters including the rights of represented adults and matters related to an individual’s Estate. This can include disagreements over the distribution of assets, the validity of Wills or Trusts, and claims of undue influence or incapacity.
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When it comes to Estate litigation, we are compassionate and caring. We focus on getting the best results for our clients in the most cost-effective way. We provide legal advice and strategies for beneficiaries, Executors, Personal Representatives, Administrators, Trustees, guardians, and other family members who are involved with Estate litigation matters.
Depending on your needs and the issues in dispute, we can begin a legal action in court and/or focus on alternative dispute resolution options, such as negotiations, settlement meetings, mediation, and arbitration.
It is extremely important for you to know your legal rights and obligations before making any decisions. Please contact our office at: (403) 288-0009 or via email at: murray@bodnaruklaw.com for a free consultation.
There are two types of Estate Litigation:
Estate Litigation Involving a Represented Adult.
A represented adult is a person who is unable to manage their own finances or make personal decisions on matters including their own health. Estate litigation involving represented adults can include:
- Disputes involving the appointment or conduct of a guardian, or applications to review, vary, or terminate a Guardianship Order under the Adult Guardianship and Trusteeship Act;
- Disputes involving the appointment or conduct of a Trustee, the maintenance and submission of the Trustee’s accounts, or applications to review, continue, amend, replace, or terminate a Trusteeship Order under the Adult Guardianship and Trustee Act;
- Disputes involving the appointment or conduct of an Attorney under the Powers of Attorney Act, including applications directing an attorney to bring in and pass accounts with respect to any financial transactions that occurred pursuant to the Enduring Power of Attorney, or applications to terminate the Enduring Power of Attorney;
- Disputes involving the appointment or conduct of an Agent under the Personal Directives Act, including the duty to keep records, complaints to and investigations by the Public Guardian, and applications to determine the validity of a Personal Directive, to vary, confirm or rescind a decision made by an agent, or to revoke the authority of an agent if the agent is failing to comply with the Personal Directive or the duties of an agent; and/or
- Claims against a third party suspected of wrongdoing (such as a caregiver suspected of fraud, elder abuse, or undue influence).
Estate Litigation Involving an Individual’s Estate
Estate litigation can be used to address a variety of disputes related to an individual’s Estate, such as:
- Applications for Family Maintenance and Support made by a spouse, adult interdependent partner, or child of the deceased, who was inadequately provided for in the Deceased’s Will (can include a grandchild or great-grandchild under the age of 18 where the Deceased demonstrated an intention to treat the grandchild or great-grandchild as their own);
- A challenge to the validity of a Will (for example, a Will may be declared void due to the improper execution of the Will), or when there may be more than one Will;
- A claim about the interpretation of a Will or Trust (a court can interpret a Will to resolve any ambiguity, such as if the list of beneficiaries is not clearly defined);
- Disputes concerning the validity of a Will, Trust, gift, or property transfer on the grounds of undue influence, lack of capacity, or other suspicious circumstances, such as:
- Lack of Testamentary Capacity – a court can set aside a Will if it was signed by a Will-maker who did not have the mental capacity to make a Will. Medical evidence is relevant here, but the test for testamentary capacity is a legal test, not a medical test; or
- Undue Influence or Coercion – a court can set aside a Will that was made because someone exerted undue influence on the Will-maker (for example, threats or pressure from a relative or caretaker to the degree that the Will does not reflect the will maker’s true intentions);
- Claims against the Deceased’s Personal Representative (the executor appointed in the Will or the court-appointed Administrator if the deceased died without a Will) for delay, fraud, negligence, breach of fiduciary duty, or some other misconduct on the part of the Personal Representative;
- Contesting suspicious transactions (e.g., substantial “gifts” made during a person’s lifetime);
- Disputes over the valuation of assets or the misappropriation of assets;
- Claims made in the name of the Deceased’s Estate to recover misappropriated funds or assets;
- Claims made by creditors of the Deceased’s Estate to recover a debt owed by the Estate;
Claims to remove a Personal Representative or claims challenging a Personal Representative’s fees; and/or - Claims about assets that fall outside the Deceased’s Estate. (Assets such as RRSPs, insurance proceeds, and trust property pass outside of a Deceased person’s Estate. Disputes about the true ownership of these types of assets can be resolved through Estate litigation).
Family Maintenance and Support Claims
In Alberta, certain family members who are left out of a Will or not adequately provided for may bring a family maintenance and support claim. These claims allow the court to vary how an estate is distributed to ensure eligible family members receive adequate support.