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Friday, March 25, 2022

Another home-made will disaster: fight over the family home ends after 12 years

Once, a long time ago, a very smug person said to me that he had made his own will because he knew full well that lawyers only wanted people to make wills so lawyers can make more money. To that person I replied that if I want to make money, I will encourage everyone to make their own wills. Why? Because I would make a few hundred dollars if I made someone a will, but I'd make tens of thousands of dollars on the family fight over the home-made will.

So let's dispense with the idea that home-made wills are any sort of money-saver. Though not every home-made will is a disaster, most are worse - MUCH worse - than people realize.

I'm going to give you an example based on a recent case from Alberta. In 1995, William Kirst made his own handwritten will. In 2010 he passed away. The fight over his will began shortly thereafter, and did not end until March of 2022. Yes, that means 12 years of fighting in court, including 7 years' worth of Case Management. It involved 17 court orders made by both the Queen's Bench and the Court of Appeal. 

And what were they fighting over? Just a house. 

The problem was that in the will, Mr. Kirst left his estate to his children but said that one son could live in the house "for awhile". Those two innocent-seeming words doomed his family to years of fighting.  Any  lawyer worth her salt would know that an undefined term like that would cause a problem.

It seems pretty likely to me that after 12 years, the legal fees amounted to more than the value of the house. I expect that family relationships are damaged beyond repair, as well. Paying a few hundred dollars for a will must, in retrospect, look like quite a good deal.

If anyone would like to read the Kirst case in its entirety, click here


  1. Lynne,
    12 years, that is is nothing! Mine has been going on for 18 years. No bragging rights here. The big difference is that I have retained legal services. I do understand that my case is not the norm.

    I might add that things appear to be moving along (actually yesterday) and there should an update as to the status of the Estate in the coming weeks. The overall cost will be high, but one huge benefit is that Real Estate has gone up considerably. I will be making money in various ways. 1) Property 2) Occupancy Rent 2) Chattel Rent 3) Interest on Estate Funds held illegally by my sibling. My sibling who could have gained possession of the property in 2004 but created a needless problem. Greed.
    My sibling had a good deal but screwed it up. It has been enormously stressful, time consuming etc. Our relationship is beyond repair. I could write a small book as to what happened, but I am exhausted.


  2. In Ontario, Rule 49 is used an attack tool, especially for family/siblings in estate conflict . A "clever" sibling/family only needs to "connect" with a lawyer who understands how to use rule 49 as a vicious attack tool. An unwitting sibling is hit with a Superior Court application full of allegations, speculations and/or malfeasance. The unwitting sibling is forced to hire a very expensive GTA lawyer or accept the slimey offer of settlement. If a senior or sibling is on limited income, the unwitting sibling is finished. Their full share as a beneficiary is gone, reduced to a shadow. Why? No laywer in the GTA will advise or represent without a huge cash retainer in advance. Even with a big retainer, GTA lawyers claim ability, but may advise to accept the slimey offer to settle once the initial retainer is flushed out! As there then is zero record kept, the perfect crime in estate law is very possible, if not probable. This estate law "crime" is "Invisble" to all observers except the victim of Rule 49 estate swamplaw. This Rule 49 technique may take years, but the beneficiary with zero funds must surrender. Who in the GTA can self represent themselves in Superior Court for years/decades on end? In Ontario, an old, poor or unhealthy senior can be Rule 49ed out of their legal right. No record is kept public by any third party. No estate practioners ever publish on this gray estate swamplaw aspect of Rule 49. And, truly Sorry that you are "retiring" your useful far- away blog!

  3. And, truly Sorry that you are "retiring" your useful far- away blog! [...old man]

    Lynne, is he referring to you?

  4. Rule 49 is a self-contained scheme containing cost incentives and penalties designed to encourage litigants to make and accept reasonable offers to settle. [3] An “offer to settle” is the term used for a written offer made by one party to another party to resolve one or more claims in a proceeding.

  5. Hi, the litigation was actually due to a false forgery allegation not mentioned. Re: “any lawyer worth their salt…” should probably know an undefined term for time is undefined time, which is possession for undefined time, and that the court found an impossible condition subsequent following. The problem is not the document

  6. awhile. adverb. ə-ˈhwī(ə)l. ə-ˈwī(ə)l. : for a while : for a short time.
    Is it correct to say for awhile?
    Awhile is an adverb that means "for a while," whereas "while" is a noun meaning "a period of time." Generally, the two-word form "a while" should be used when following a preposition ("I will read for a while"), or with the words ago or back ("a while ago/back").
    Awhile Definition & Meaning - Merriam-Webster
    AS for me...
    A Judge has ordered my sibling to account for Estate monies unaccounted for. It's been at least 5 months and no word as of today. My lawyer told the Court that I 'fired' him. The Court has yet to hear my response. I have since asked my lawyer to provide documentation. If I had fired my lawyer, the other side would have certainly used that against me. What a mess. TBC.


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