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Wednesday, January 9, 2013

How do I know if someone is contesting the will?

I recently received this note from a reader who is acting as the executor of an estate:

"I have applied for probate and now I'm waiting the 6 months to see if anyone is going to contest the will. If they do contest it, how will I know?"

This is an excellent question, particularly if there is someone in the family who has been making noises about contesting the will. Usually the six months that you refer to is in place to allow a dependent of the deceased to apply for a greater share of the estate. Strictly speaking, this isn't contesting the will, but is only asking the court to change the distribution to give more of the estate to a person who was not sufficiently supported. In most places, a dependent (a spouse, minor child or handicapped adult child) has six months from the day the probate is issued by the court, NOT six months from the date of death.

If someone is going to make this kind of claim, they have to follow the court procedure set out in the law of the province or territory. Every province has its own laws and forms. The person who is making the claim would have to file certain documentation with the court and then serve the documents on you. They don't start a new lawsuit; they file all the documents in the probate court  using the case number assigned to your probate application.

Serving the documents - or giving you a copy of them - is usually done by registered mail or in person. When you filed your probate documents, you would have been asked to give an address for service. If you applied without a lawyer, the address for service would be your home address. If you used a lawyer, the address might be the lawyer's office. And by the way, refusing to pick up your registered mail doesn't mean they haven't served you. They have.

If someone tells you on the phone or writes you a letter saying they are making a claim against the estate, that is not sufficient. They have to go through the proper court process just like you did when you applied for the probate. Just talking about it does nothing. If someone does tell you they want to make a claim against the estate, tell them to see a lawyer.

16 comments:

  1. Everything should be discussed in the court to ensure proper ruling. The court needs to seek the basis of negating the will as well as the the grounds of the will owner regarding his power over his or her estate.

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  2. My husband and I were married for 6 years. Second marriage for both of us. We were comfortable but by no means well off. Over the past 4 years we have managed to give each one of our 4 children $40,000. My husband has since past and his kids are upset that their dad didn't leave them more. More what More? 2 days after he past they were talking Notary for reading of the will and division of assets. I didn't know what they were talking about. He only has a Lira account and a life insurance policy and I'm the beneficiary just likes he's the beniciary on my RSP account. Our big mistake was not telling his kids when he was alive that there's no money beside these two holdings. I'm sure they've named their spouse as their beneficiary. I think they think their dad has bank accounts full of money because he was always very generous with them.

    ReplyDelete
    Replies
    1. Sadly, it's typical that when a person in a second marriage passes away, the kids from the first marriage tend to focus anger and suspicion on the surviving spouse. Whatever their issues are, they are clearly using you as the scapegoat. Perhaps you need to point out to them that they had their inheritance - all 40K of it - already.

      Lynne

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  3. My mothers will has a clause in it stating that "the three girls don't want anything." My mother has four daughters and one son. He is the youngest and is being left everything. He has no children....and has never had to work. I would like my inheritance. Mom did not like "girls", and I feel that we are being discriminated against because we are girls.

    ReplyDelete
    Replies
    1. I assume that the will says more than you "don't want anything". I assume it actually goes so far as to say you don't get anything.

      If you live in BC, you can hire a lawyer to bring an application under the wills variation act. People have been successful before in changing a will that discriminated against children on the basis of gender or other factors.

      If you don't live in BC, you are probably out of luck. Other provinces in Canada don't provide for changes to a will unless you happen to be a spouse of the deceased, a minor child of the deceased, or an adult child with a handicap.

      Talk to an experienced lawyer in your area. The key here is an EXPERIENCED lawyer whose knowledge of wills is deep.

      Lynne

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  4. My step-sons are suing me under the "Wills Variation Act" They are suing me for a LIF(Life Income Fund) with my name as the beneficiary. So they don't have a leg to stand on I know this. I have retained a lawyer. They have stated under what law they're suing me for "Wills Variation Act" and they want an investment portfolio with me as the beneficiary and asset that is indeed outside the "will" So at what point will my lawyer send this message that I am the "beneficiary" of the LIF so therefore the Will Variation ACT doesn't apply. I'm just worried that he won't put this across so we can go 4 or 5 rounds first making his wallet thicker. Is there laws against this or is it his job to address the claim as quickly as possible. I don't want to waste my money and my step-sons money sending letters back and forth.

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  5. Can someone contest a RRSP Designated Beneficiary? I am the wife of the deceased, my wife's estate is very minimal. But I am named as Designated Beneficiary on her RRSP and Life Insurance. My step kids are trying to contest this. Even though I'm leaving everything to them when I die. Will they win?

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  6. One needs to remember that for a successful resolution of a case you do not necessarily need to hire an expensive lawyer. Experienced lawyers can also deliver good results.Thanks..Left Out Of A Will

    ReplyDelete
    Replies
    1. Some experienced lawyers are expensive, and some expensive lawyers are experienced. They are not mutually exclusive. Definitely go for the experienced lawyer if at all possible, because it will be worth it.

      Lynne

      Delete
  7. My aunt passed away and the brothers forged her will eliminating one of the sisters who lives overseas. The certified graphologist said the signature was forged. The lawyer says it is the original will. However, it was never registered in probate, even if the estate was sizable. Due to the international factor, is it better to let go or to pursue?

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  8. I am the estate trustee for a neighbour that passed away over a year ago. She had no direct descendants, only a brother that pre-deceased her.
    The sister-in-law is contesting the will, saying her sister-in-law did not know what she was doing and was coerced into changing her will.
    There is an in terrorem clause in the will, so if she loses she does not get her bequest from the final will. Her lawyer has stated that she doesn’t care about her portion, but is fighting for her 2 adult children to get more money.
    Is this allowed? Can she fight for getting her kids more money so they do not risk losing their bequests due to the in terrorem clause?

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    Replies
    1. Her motivation doesn't matter. If her kids are not actually the ones contesting the will, they are not in danger of losing their bequests due to the in terrorem clause.

      Lynne

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    2. Hello Lynne, under the terms of the will the kids would be getting about $200K each. Today I received notice from their own lawyer that for $650K each, they would release any further claims to the estate.
      Does that sound like they are contesting the will themselves?

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  9. I am hoping you can give me some advice. My brother was left out of my Mothers will he has contested. The beneficiarys were all sued as well as the estate. My question is it has been over two years now and he has done nothing. Can he just continue to do nothing or is there a next step for us to take to move things along. None of us are willing to settle to his demands against my mothers wishes.

    ReplyDelete
    Replies
    1. Hi Colleen,
      If he really has not done anything at all to advance his claim in 2 years, he is going to run into the concept of "laches", which means unreasonable delay in pursuing a claim or right. Your lawyer will be able to get the court to end the claim due to lack of action on his part.

      Lynne

      Delete
  10. My brother and I would like to contest my fathers will on the basis of lack of mental capacity, undue influence where the last will is totally different from the previous 3 wills my father had. and interpretation understanding the language and in ability to read.
    We are 3 siblings and one sibling who is also the Executor is receiving their 1/3 share of the estate and is the executor. The other 2- 1/3 shares are now changed to our children which are the grand children.
    Two of the grandchildren are minors.
    It has been 2.5 months and have not heard from the Executor or seen the Will to verify this is all true and the Executor is actually that 3rd sibling who is receiving 1/3 of the estate.
    What should we do first? Request copy of the Will? What is involved in contesting the will?

    ReplyDelete

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