Common Questions About Estate Litigation in Alberta
Estate litigation is a very complex area of the law. This is why it is very important to discuss your options with an estate lawyer.
Please don’t hesitate to reach out to Safi Law Group if you have any questions regarding estate litigation.
Let’s cover some of the general questions people often have about estate litigation.
What are some of the grounds to Challenge a Will?
There are various grounds to challenge a Will. Some are technical (such as a missing signature or lack of witnesses). Others have to do with the drafting of the Will (such as unclear instructions or inconsistent provisions). However, when Wills are drafted by experienced lawyers, the technical and drafting deficiencies are unlikely to occur. Even if a Will is technically valid and absolutely clear, there may be other grounds to challenge a Will.
Quite often, the issue of mental capacity comes into play. In order for an individual’s Will to be valid, that individual needs to have a certain degree of mental capacity at the time when the Will was signed. For example, the individual needs to understand the effect and nature of making a Will, the general nature of his or her assets, that his or her assets were going to be given away, the identity of the beneficiaries named in the Will etc. If for some reason (such as dementia/Alzheimer’s), an individual lacks the required mental capacity, the Will could be deemed invalid.
Similarly, duress and undue influence could also invalidate an otherwise technically valid and clear Will. These two legal concepts have distinct definitions and requirements, however, essentially, they deal with cases where someone was forced/pressured to sign a Will, which may not necessarily express their true wishes.
If you believe that someone’s Will do not express their true wishes, you may have grounds to challenge that Will. Contact our office now to book a consultation to discuss your matter.
What happens when a Court deems a Will to be invalid?
If an individual’s Will is held to be invalid, that individual’s estate will be distributed in accordance with the intestacy rules (as if they had no Will at all). However, if that individual had a previous Will, that previous Will could become valid again. In either of these cases, the estate could be distributed in ways that the individual had not intended at all.
What if I receive an unfair share in a valid Will?
To a certain extent, the law allows an individual complete freedom as to whom they can leave their estate. However, there are certain categories of family members to whom an individual owes legal and moral obligations, which must be satisfied in a Will. Otherwise, a perfectly valid Will could be challenged by eligible family members if the individual did not provide adequate maintenance and support for those family members. In Alberta, the eligible family members include a spouse/common-law partner, a minor child or an adult child with disabilities.
Contact a Wills and Estates lawyer at Safi Law Group if you believe you did not receive a fair share in a relative’s Will to see if you have grounds to challenge that Will.
What if an Attorney (under a Power of Attorney) or an Agent (under a Personal Directive) are misusing the documents for personal benefit?
If an Attorney or an Agent is suspected of misusing their authority, they can be held accountable through a Court application. However, if fraud is suspected, it is very important to move swiftly to avoid having estate assets being lost forever.
What if a Personal Representative (aka Executor) is mismanaging an estate?
A personal representative has an obligation to beneficiaries to distribute the estate and provide an accounting regarding estate property in a timely manner.
It may be necessary to take action if an executor is failing to communicate, not providing periodic accounting/financial information or not distributing the estate. In those cases, you may have grounds to bring a Court application to hold the executor accountable or to have them removed from their position.
Talk to an experienced Wills and Estates lawyer if you believe an executor is not doing their job properly.
Why acting quickly is advised
It’s important to act quickly within the limited time frames available for contesting a Will.
Unfortunately, you may be out of options if money from an estate is already spent before you can initiate litigation. That’s why it’s advised that you contact a lawyer immediately if you have questions about challenging a Will or removing an executor.
What are the fees for Estate Litigation?
Estate litigation is usually billed on an hourly rate basis. At Safi Law Group, we offer very competitive hourly rates for estate litigation matters.
In limited cases, we may be able to accept an estate litigation matter on a contingency basis. In those cases, we will not charge you any fees until you receive a settlement or judgment.
We’ll be happy to go over our fee schedules with you when you meet with us to discuss your concerns over an estate.
Get help for Estate Litigation or Challenging a Will
It’s important to act quickly if you suspect that a Will is not valid.
You do have options for challenging a Will or your portion of an estate. However, very specific procedures must be followed.
Safi Law Group is here to help you explore your next step. Call us at (780) 760-7234 or reach out via the Contact Us page to book your consultation.
Contact our office now if you believe you did not receive a fair share in a relative’s Will to see if you have grounds to challenge that Will.