Often, a deceased owns real estate, bank accounts, or other assets jointly with another person, such as a child or a spouse. A question then arises whether the deceased intended such property to belong to his estate or the other joint owner.

Suppose a parent owns an asset jointly with an adult child. In that case, the law presumes that the parent did not intend the child to own the property, regardless of whether the child is a dependent or not. The rationale here is that the parent added the child as a joint owner for convenience, such as assisting with the management of the joint property, simplifying estate administration, or minimizing probate tax. Accordingly, such joint assets will go to the deceased’s estate unless the child proves a contrary intention of the parent.

If a parent owns a property jointly with a minor child, the law presumes that the parent wanted to benefit the child. As a result, such asset will go to the minor child as a surviving joint tenant when the parent passes away, absent a contrary intention of the deceased.

Joint ownership between spouses is difficult to challenge. On the one hand, there is no presumption that a joint property of spouses goes to a surviving spouse. However, most of the time, the survivor can prove the deceased spouse’s intention to share the assets and support the other spouse on death.

If a deceased dies owing money, be it taxes or loans, the creditor has a debt claim against the estate. Debt claims shall be paid in priority to inheritances. While executors are not liable for the deceased’s debt, they are personally liable for failure to pay such debts before they distribute the estate to the beneficiaries. Sometimes, the personal representative disputes the amount claimed by the creditor. Because such claims require faster and less expensive resolution, the law established a particular estate litigation procedure for them.

Child support and alimony are debts of the deceased. Unless the support obligations cease on death, they must be paid from the estate in priority to beneficiaries.  A conflict may arise if the support obligation continues after death. The actual amount of child or spousal support payable from the estate is difficult to calculate because the numbers are often contingent on multiple factors and future circumstances. A court order or a separation agreement can discontinue spousal support obligations on death.  Sometimes, the obligation to pay spousal or child support quits for the estate, but there is a life insurance policy to pay out a substitution for future support.

When the deceased failed to leave adequate support for a spouse, partner, minor child, or another dependant, the court may order to pay adequate support to such family member from the estate. A dependent family member must file the claim for support within six months of the grant of probate or administration for the deceased’s estate. Many personal representatives reasonably postpone the estate distribution until after the six months are over.

One of the most common grounds for a will challenge is the testator’s mental incapacity to make a will. However, the mere fact that a testator has some mental illness does not mean that they are incapable of making a will. When signing their Will, a testator must have a reasonable understanding of their financial circumstances, family situation, and gifts they are making in the Will.

Another ground for a will challenge is undue influence or pressure on the testator to benefit a beneficiary. While some influence among family members is normal and exists most of the time, the test for undue influence is whether there was overpowering coercion of the testator. Undue influence is easier to prove if the testator favored one of the children or a third party, such as a caregiver, especially if the testator was vulnerable. The claim has more chances to stand if the testator changed the Will secretly, shortly before the death, and if the benefiting child or the caregiver limited the testator’s interaction with others.

When the executor delays probate or estate administration, the beneficiaries may seek a court order to compel the executor to complete the probate or withdraw. Alternatively, the beneficiaries can apply to the court to remove that executor and have someone else appointed instead.

The personal estate trustee’s compensation is another usual cause of estate litigation. When the Will is silent on the executor’s compensation, they are entitled to receive fair and reasonable compensation for their efforts. While we have Executor’s Fee Guidelines with recommendations from the Alberta Surrogate Rules Committee, they are not mandatory, and some people consider them outdated. Some estate trustees miscalculate compensation based on the gross value of the estate. Another mistake is to request compensation for the work performed by a third party, such as an accountant or a lawyer. In fact, an estate trustee has an obligation to provide accounts to the beneficiaries. Suppose the estate trustee failed to pass their accounts. In that case, the beneficiaries could compel the estate trustee to provide the accounts through a court application.

When a deceased makes significant gifts shortly before the death, this decreases the value of each heir’s share. Consequently, a disappointed beneficiary may challenge the gift made by the deceased to the recipient. The beneficiary can argue that the deceased did not intend to make this gift but wanted to give the recipient an early installment on an inheritance. Alternatively, the deceased might have been under undue influence and was compelled to make the gift. When a gift is challenged, the recipient has to prove the intention of the deceased to make the gift. However, this claim is unlikely to succeed if a deceased made a gift to an unrelated third party, such as a charity.

At DLegal, we understand that the death of a friend or family member is a frustrating period in your life. Let us ease any unnecessary stress and explain how best to approach your grievance. Contact us to discuss your case.

We keep clients at the center of our work.  Your estate litigation lawyer will discuss the strategies available to you and will guide you through the process to ensure that your interests are protected.

In addition to the Estate Litigation, a DLegal Wills And Estates Lawyer can assist you with related services, such as:

1. Preparing a full Wills and Estates Package, which includes a will to address testamentary wishes, and an enduring Power of Attorney and a Personal Directive dealing with an incapacity scenario.
2. Powers of Attorney for property, to ensure someone you trust has the power to handle your financial affairs if you are not available or become incapacitated.
3. Personal Directives, which include anything from your choice of medical treatment, body organ donation, and end of life procedures to instructions regarding your children.
4. Probate of Wills, when the probate court verifies that the will is enforceable and grants authority over the administration of the estate.
5. Letters of Administration, which allow managing the estate if someone passes away without a will.
6. Estate and trust planning to help you preserve your assets, protect your business, minimize taxes and ensure your wishes will be carried out.
7. Business succession planning, to ensure your business will be properly dealt with in accordance with your wishes.
8. Guardianship and Trusteeship applications to assist you with managing personal and property affairs of your loved ones when they become incapacitated without a Personal Directive or an Enduring Power of Attorney.