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Estate Litigation

Judge's Table
Estate Litigation

Challenging a Will is a difficult and tough decision. It is fraught with emotion as it most often involves disputes with very close relatives. At Estate Lawyers Mississauga, we help you in this difficult decision making process by advising you as to the best and most efficient way forward. A Will challenge involves beneficiaries, guardians, estate trustees and lawyers. Litigating an estate in Mississauga is a long process and involves huge legal fees and expenses. However, there are situations where the only option open for a party is to litigate an issue top obtain a Court Order.  


There may be situations where there are adult disabled children, who were not properly provided for under the Will. The issue of dependent’s relief claims can arise in such a situation.

 

Estate Lawyers Mississauga has the experience, knowledge in Canadian Estates and Trust Law, and can properly advise you of your best course of action. We are very clear in our communications and have empathy for our clients who sometimes find, despite much negotiation and mediation, that the only legal remedy is estate litigation in Court. 

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Our estate mediator Syed Kabir has over 20 years of experience as a litigator, is qualified as a lawyer in three jurisdictions (Ontario, England and Bangladesh) and also has Master Degree in Law from a reputed University in the UK.

​Challenging a Will in Ontario

The first hurdle in challenging a Will in Ontario is to determine if you have legal standing to do so. At Estate Lawyers Mississauga, we are competent to provide legal advice to you as to your legal rights, as well as the best way forward.


This legal framework is set out in Ontario’s Rules of Civil Procedure, Contentious Proceedings, Rule 75. Rule 75 sets out the procedure concerning claims against an estate. The companion rule, Rule 74, sets out the procedure for dealing with non-contentious issues related to an estate.

Estate Litigation Services

The following is a non-exhaustive list of estate litigation services provided by Estate Lawyers Mississauga:

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  • Allegations of abuse under Powers of Attorney for Personal Care and Property

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  • Actions related to Breach of Trust by fiduciaries 

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  • Challenging a Will for undue influence exercised on the Testator and/or capacity of the Testator

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  • Defending a Will

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  • Dependant’s Support and Relief Claims

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  • Actions/Claims related to breach of fiduciary duty by Estate Trustees

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  • Guardianship Applications

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  • Passing of Accounts by Estate Trustees and Attorneys

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  • Disputes between Estate Trustees and Beneficiaries

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  • Claims related to Resulting Trust and Constructive Trust

Grounds for Challenging a Will in Ontario

At Estate Lawyers Mississauga, we first determine if you have a valid claim for challenging a Will in Ontario. Generally, a Will can be challenged on the following  grounds:
 

  • The Will is fraudulent or forged.

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  • The Will was not executed legally, meaning it was not signed in front of witnesses in the legally prescribed manner.

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  • The Testator i.e. the person making the Will lacked knowledge and did not approve the contents of the Will.

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  • There was “undue influence” exerted on the Testator to sign a Will that bequeaths particular assets to specific people using pressure, coercion, threats, or other means.

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  • The Testator lacked testamentary capacity and may have suffered from dementia or Alzheimer’s at the time of signing the Will.

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  • The Will failed to provide adequately for a surviving spouse, children or other dependents, especially minor children or adult disabled children.

Invalid Grounds for Challenging a Will

There are also grounds that are insufficient to challenge a Will. In Ontario, a Will does not have to be fair and treat all beneficiaries the same. Fairness is not a legal threshold that is legally defensible. Estate Lawyers Mississauga can advise you if your claim to challenge a Will is valid. The following are some invalid grounds to challenge a Will in Ontario:

 

  • If the deceased promised you money, property, physical assets, or personal effect of sentimental value that was not written down in the Will;

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  • If you believe the Will treats you unfairly; or

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  • If the deceased wrote his/her own Will, used a Will Kit, or online Will writing software.

How Dementia Affects Challenging a Will

Sadly, many Canadians in their senior years will be afflicted with dementia, Alzheimer’s disease, or a combination of both. The legal term that is germane to both writing a valid Will and challenging an invalid Will is called “testamentary capacity.” In other words, the test is whether the person making a Will (the Testator) was fully in command of his or her mental faculties?

 

Annually, there are about 76,000 new cases of dementia diagnosed in Canada. About 25% of Canadians aged over 85 are diagnosed with dementia. About 66% of Canadians seniors with dementia are women.


Estate Lawyers Mississauga can provide you with specific legal advice if a loved one has been diagnosed with dementia and how that affects challenging or defending a Will.

Contact us today for a consultation regarding your Will, Powers of Attorney and/or other estate matters.

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Contact us today to request a free 1/2-hour consultation:

905-625-5236

contact@estatelawyersmississauga.com


Serving Mississauga, Brampton, Caledon, Milton, Streetsville, Meadowvale, Erin Mills, Clarkson, Vaughan, Richmond Hill and Toronto

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