Do I need an estate litigation lawyer
Disclaimer: This article on choosing an estate litigation lawyer is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Estate law is more than preparing a will or settling an estate after the death of a loved one. There is also the litigation side of estate law. This article is designed to help you understand if you need to pursue estate litigation and if so, what that would look like.
At Beeksma Law, we practice in a variety of areas, including estate litigation. We understand that disputes involving estates can be unquestionably difficult and emotional. We provide guidance to help our clients navigate these complicated cases, so they are able to make the best decisions for their families.
Firstly, a note for those planning their estate.
Preventing Estate Litigation
To begin with, if you are planning your estate, it is important to take steps to prevent future disputes. This includes ensuring that your will is clear and properly drawn with the help of an estate lawyer, that all assets are properly allocated, and that executors and trustees know what is expected of them. With proper planning, you can be more confident that your executor will follow your wishes and avoid disputes.
What is estate litigation?
Simply put, estate litigation is when someone seeks legal action because of a dispute involving the management, control and distribution of property within an estate.
Let’s consider some examples of when someone may want to pursue estate litigation.
- Challenging or contesting a will
- Disputes related to how the estate executor carries out their duties
- Disputes related to how much a beneficiary receives from an estate or how much the estate is worth
- Issues related to how a power of attorney is being used
- Disputes between co-executors
- Disputes between co-attorneys of a power of attorney
- Disagreements between beneficiaries
- Disputes related to compensation for the estate trustee
- Guardianship and incompetency disputes
- Disputes that arise when there is no valid will
If you think you may need to pursue estate litigation, discuss this with an estate litigation lawyer immediately. In Ontario, estate litigation is time-sensitive. You must file a claim within two years after you knew or ought to have known that there was an issue. Generally, the legal standard is that the time limit begins when a “reasonable person” would know there was a problem.
Litigating an estate claim
Let’s very broadly outline how the process works if you need to litigate an estate claim. At any point, either side can file motions requesting that the judge make an order on a certain issue.
First, one party files a claim, along with any affidavits and evidence to support those claims. Then, the respondent responds to the claim, which includes their own affidavits and evidence. The applicant may or may not reply to the respondent.
Thereafter, each party cross-examine the other under oath about the materials, as well as any affidavits that they have filed.
Mediation is mandatory in Ontario. Mediation is where a neutral third party helps the parties come to an agreement. However, if this is unsuccessful, the case goes to trial, and both sides present their evidence and arguments to a judge. The judge will make a decision and issue an order that the parties must abide by.
Resolving an estate dispute without going to trial
It’s important to acknowledge that estate disputes are highly emotionally charged. Beyond the legal issues involved, grief sometimes makes people act irrationally or want to right wrongs that have nothing to do with the facts being disputed. We understand that and therefore work hard to help our clients move forward in a healthy manner while protecting their legal rights.
Litigation is simply never the best option. Litigation is time-consuming, difficult and expensive. It does not allow you to move forward in handling the estate or putting the dispute behind you. In many instances, mediation or negotiation resolves any estate disputes.
Understanding Estate Litigation With Beeksma Law
At Beeksma Law, we understand estate litigation and how to handle it in a respectful way. With extensive experience litigating estates, we are strategic advocates when it comes to protecting your legal rights.
Book a call with our team today for your complimentary consultation.