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Tuesday, October 2, 2018

Contesting a Will Without a Lawyer: A DIY Guide for Canadians


It's finally ready! My newest book has been published by Self-Counsel Press and is now on its way to bookstores and online sellers. You can order yours here. It's available as an e-book, too.

This latest book is a guide to getting your estate-related lawsuit into court. It explains the various grounds for contesting a will and describes in detail how to go about it. It contains all of the forms you'll need to launch your lawsuit, with plenty of explanations and examples to help you along the way.

Below I've posted a snippet from the book. This is from a chapter about understanding legal cases and legal research, and is talking about why courts look at previously-decided cases when they are considering what to do about your case. I posted this excerpt to give you a flavour of the language used in the book and an idea of how legal concepts are explained.

This book will be of interest to anyone who is thinking about challenging an estate, with or without a lawyer because it is absolutely packed with information, explanations, and ideas. The forms are available on a download that comes with the purchase of the book. If you are working without a lawyer, this book will guide you through the process. If you are working with a lawyer, this book will save you hours that would otherwise be spent asking the lawyer for information (and the fees you'd pay to get that information). It's also interesting to anyone who just wants to know how things work in the estate litigation world.

I'm very excited about this new book and I hope you readers like it and find it useful. As always, feedback is appreciated. Here is the excerpt I mentioned:

"Precedent" literally means “what went before.” In the context of litigation, precedent refers to the idea of the court following cases that have been decided in the past. This is done so that cases with similar facts will have similar outcomes even when the cases are decided by different judges in different places. There can be some certainty among lawyers and laypeople alike as to what will happen when any given case goes to court. 

For example, let’s look at the case of Pecore v. Pecore, decided by the Supreme Court of Canada in 2007. In that case, a father added his daughter to his bank account and investment account, making her a joint owner. The question the court was asked to decide was whether on the death of the father, the joint assets belonged to the daughter or to the father’s estate. The court confirmed that the presumption of resulting trust arose, as we discussed earlier in this book. The court examined the facts of the case and found that there was very strong evidence that the father intended the account to be a gift to his daughter. 

Since the Pecore case was decided it has been cited in at least 500 reported cases. It gives guidance to everyone who is working on a case with joint assets because it describes how to tell where the asset really belongs. If your case was about joint assets, you could look up the Pecore case and find out what “strong evidence” the court relied on. If you can find the same sort of strong evidence for your case, you could expect a similar outcome.

In our legal system, we are required to follow the precedents that our courts have set down for us, as long as we ensure that the facts and the legal questions we are following are the same as the cases we are working on. This is one of the cornerstones of the common law legal system that exists in all Canadian provinces and territories except Quebec. 

5 comments:

  1. I am really happy to say it’s an interesting post to read . I learn new information from your article , you are doing a great job . Keep it up

    https://www.boothlaw.co.nz/

    ReplyDelete
  2. Monique, you can buy it on Amazon at https://www.amazon.ca/Contesting-Will-without-Lawyer-Canadians/dp/1770403051

    Lynne

    ReplyDelete
  3. Lynne, a great book to have and we're going to search for it right away. We're sitting at step one, filing a Notice of Objection (Ontario) In The Matter of an Application for a Certificate of Appointment of Estate Trustee. When we tried filing it at our local court, we were informed our mother has to be deceased before we can file such an objection. Our problem is that mom's companion has completely isolated her and is keeping all details of her failing health from us. We're suspecting her death will pass without us being informed it happened, putting us in a catch up position of weeks or even months from the get go. Our mom still has a legal spouse who is wondering if the partner has a legal obligation to inform him/us when the time comes. Has anyone out there been caught in a similar situation? The partner is claiming POA and Estate Trustee appointments, and that our mom's affairs are only his business. We've uncovered he is already misappropriating her property. It's truly shocking how our society allows, and then protects, such financial abuse of our elderly to happen. Hopefully your book will help us bring mom's partner to account at the end of the day.

    ReplyDelete

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