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Estate Law & Litigation: What happens to a lawsuit if the plaintiff or another party dies?
Disclaimer: This article discusses Estate Law. It 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.
Civil litigation on its own can be complex. What happens if a party passes away while the litigation is ongoing?
This creates a whole host of issues to consider. In this article, we’ll talk about the estate trustee’s next steps. However, each situation is unique, and it is always wise to talk to an estate attorney about your pending lawsuit.
What happens in a civil lawsuit if the defendant dies?
In Ontario, if a party involved in legal proceedings passes away, those proceedings related to the deceased’s interests or liabilities in the lawsuit are promptly halted, known as a “stay.” This means that the court will not permit the action to proceed unless specific conditions are met. Rule 11 of the Rules of Civil Procedure outlines the procedure for parties to resume the action following the death of a party.
What happens when a plaintiff dies?
This can happen fairly often in a personal injury lawsuit, as it can take years to settle or go to trial. The same rules would apply as noted above.
However, in some instances, a claim may not continue after the plaintiff’s death. For example, Ontario courts have barred an estate from continuing a Charter claim that the deceased had commenced against the federal Attorney General.
Who can obtain an order for continuance?
According to Rule 11.02 of the Rules, if a person’s interests or responsibilities in a case transfer while the case is ongoing, anyone interested can ask the court to continue the case by filing the appropriate documents.
However, although the rule mentions “any interested person,” court decisions suggest it’s usually the executor of the deceased’s estate who must do this for a deceased plaintiff. This makes sense because whatever the deceased’s role was in the lawsuit becomes part of their estate.
What if someone dies without a will? The courts may be cautious about giving someone authority over litigation without the proper estate administration in place (such as a court appointment for an estate trustee).
What if the estate has not obtained an order for continuance?
Suppose a plaintiff has passed away and his or her estate has not obtained an order for continuance.
If the estate does not obtain an order for continuance, defendants have two options:
Option A: Defendants can take the initiative to obtain the order themselves under Rule 11.02(1). This involves naming the trustee in substitution for the deceased litigant.
Option B: Defendants could alternatively move under Rule 11.03. This rule allows for a motion to dismiss the action for delay if no order to continue is obtained within a reasonable time after the transfer or transmission of the plaintiff’s interest.
To make a motion under Rule 11.03 (Option B above), you must prove that the delay was unreasonable.
Ontario courts consider various factors in determining reasonableness, but there are no specific guidelines on the length of delay. Factors that the courts would consider include the time required to obtain a certificate of appointment for the estate trustee, especially in cases of intestacy, and any legitimate reasons for the delay.
In many cases, it may be preferable for the defendant to simply obtain the order for continuance for themselves.
Beeksma Law: Your partners for comprehensive estate advice
Navigating estate law and litigation demands a nuanced understanding of legal procedures and implications, especially in cases involving the death of a party. At Beeksma Law, we recognize the complexities inherent in these matters and are committed to providing comprehensive estate advice and representation.
Whether you’re facing challenges related to the death of a party in ongoing litigation or seeking proactive legal guidance for estate planning, our experienced team is here to support you every step of the way. Trust Beeksma Law to be your partners in safeguarding your interests and securing your legacy.
Estate Litigation: When Should You Consider Mediation?
Disclaimer: This article on estate mediation is intended for the purpose of providing information only. It 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 litigation is a complex and emotionally charged area of law, especially because it often involves disputes among family members. When conflicts arise over inheritance, wills, trusts, or other estate matters, you might initially be adamant about pursuing your claims in court.
However, litigation takes a long time. The emotional and financial cost of this process can take its toll. What if there was another way to resolve this conflict? This article explores the role of mediation in estate litigation and how it can help parties find common ground, reduce costs, and ultimately lead to fair resolutions.
The realities of estate litigation
Like other civil litigation cases, the majority of estate disputes are resolved through settlements rather than going to trial. Settlements offer several benefits, including avoiding the unpredictability of court outcomes, reducing legal expenses, and providing closure to the parties involved.
Reaching a settlement can be difficult. After all, you pursued litigation in the first place because you felt strongly about the issues at hand. However, it is possible to come to an agreement. This is where mediation comes in. Mediation plays a pivotal role in facilitating settlements in many estate cases.
What is mediation?
Mediation is an alternative dispute resolution (ADR) process in which a neutral third party, the mediator, assists the conflicting parties in reaching a mutually acceptable agreement. It is a flexible and non-adversarial approach that allows parties to communicate openly, identify their interests, and work towards finding common ground.
What are the advantages of mediation in estate litigation?
There are many benefits to participating in mediation, including:
Emotional Considerations: In estate litigation, emotions often run high due to the familial nature of the disputes. Mediation provides a safe and private environment where parties can express their feelings, facilitating a more empathetic understanding between them.
Cost-Effectiveness: Mediation is generally less expensive than protracted litigation, helping parties save on legal fees and court costs.
Time-Efficiency: Estate litigation can stretch on for years. Mediation is much faster, especially when parties are willing to engage in open dialogue and negotiation.
Customized Solutions: Mediation allows parties to create tailored solutions that address their unique needs and interests, as opposed to rigid court judgments.
Preserving Relationships: Unlike court battles that can further strain familial ties, mediation promotes collaboration and can help mend relationships between disputing family members.
How does mediation work in estate litigation?
Mediation typically occurs after the initial stages of litigation, where parties have undergone pleadings, motions, and examinations. Mediation sessions may be held multiple times, depending on the case’s complexity and the parties’ willingness to cooperate. Even if mediation does not resolve all of the issues, it does help narrow the disputes that must be resolved at trial.
Lawyers play a crucial role in guiding their clients through the mediation process. They help their client assess the strengths and weaknesses of their case, set realistic expectations, and provide legal advice throughout the negotiations.
Avoiding the uncertainty of trial
Even in cases where one side believes they have a strong case, trials always carry an element of uncertainty. A judge’s decision may not be what you expect, which can bring further frustration and potentially escalate the conflict.
With mediation, the parties are in the driver’s seat (so to speak). You can create an outcome you can live with and avoid the unpredictability of a trial.
Is mediation mandatory in Ontario?
While mediation is voluntary in most jurisdictions, some areas may have mandatory mediation requirements. In Ontario, mediation is mandatory for most civil litigation cases that are filed in Toronto. In other jurisdictions, it is voluntary, although a judge may order that the parties participate in mediation.
Beeksma Law and Your Estate Litigation
If you find yourself embroiled in an estate dispute and seeking a compassionate and skilled legal team to guide you, look no further than Beeksma Law. Our experienced lawyers understand the complexities of family disputes. We can help you find amicable resolutions while safeguarding your best interests.
Contact Beeksma Law today and discover why we are renowned for providing exceptional legal services in estate litigation. Let us be your partner in navigating this challenging process and finding the best solutions for you and your loved ones.
How to contest (or challenge) a will in Ontario?
Disclaimer: This article on challenging a will is intended for the purposes of providing information only. It 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 disputes are becoming increasingly common, as family members wish to challenge the contents of their deceased relative’s will for a number of reasons.
If that’s the case, can you challenge a will? Who has the right to do so? What are the different grounds for contesting or challenging a will? These are the questions that we will answer in this article.
At Beeksma Law, we are passionate about estate law. From creating clear, complete estate documentation to helping you navigate any legal issues following a death, we are here to help.
Who can challenge a will in Ontario?
In the province of Ontario, only certain individuals have the right to challenge a will. We call these individuals “interested parties.” Under Ontario’s Succession Law Reform Act (SLRA), interested parties are those who “appear to have a financial interest” in the estate. This could mean those who would be beneficiaries under the intestacy provisions of the Act if there were no will, or anyone else who can demonstrate that they were financially dependent on the deceased.
Typically, challenges are brought by children, grandchildren, spouses, siblings and other close relatives.
What are common grounds for challenging a will?
The court will not invalidate a will that treats you unfairly or if you do not receive what you felt entitled to inherit. Simply put, there is no legal requirement to be nice or to share an estate equally. It’s also important to note that the onus is on the person bringing forward a challenge to prove that the will is invalid. This means that the courts will assume that the will is fine and it is up to you to convince them otherwise.
However, you could successfully challenge a will under a few grounds. Let’s consider some of those.
Lack of Capacity
The law requires that someone making a will knows and understands the impact of what they are signing. Because of someone’s capacity, someone may question the validity of a will. Therefore, an interested party may challenge a will if the testator (the person making the will) did not have the mental capacity to understand:
- what they were signing;
- what it meant for their beneficiaries; and
- how another party was likely to interpret the will at the moment that the testator reviewed and signed the will.
This is particularly important – you must prove that the testator lacked capacity at the time of signing. There is a principle in law called a “lucid interval”. This means that while a person may struggle with cognitive function, they can still have lucid intervals where they can reason and make decisions. If that is the case, then a will made during this period could be valid.
Undue Influence
Undue influence is another common ground for contesting wills. This is when an individual forces, coerces or manipulates the testator into making decisions that were not in their best interests. This could be by another family member, a caregiver, or even a lawyer or other professional involved in the drafting of the will.
The court can consider factors such as whether the will benefited anyone too highly in a disproportionate way. It can also consider whether the testator was influenced by someone they had an unequal relationship with (such as a caregiver).
We typically see this among elderly people who live alone. A “new friend”, caregiver or one of their adult children may take advantage of their relationship with that person to try to influence their decisions in order to benefit from their will or powers of attorney.
If you believe that any of these conditions have been present, then a court challenge might be the right course of action for your case.
Changed Circumstances
We noted the example of actor Heath Ledger in an earlier article. He created a will, but did not update it after the birth of his daughter.
In some circumstances, an interested party can challenge a will if there is evidence that the testator did not update it to reflect changes in their circumstances. Those circumstances must be so noteworthy that the will no longer reflect the testator’s true wishes (i.e. to care for their children).
Fraud or Forgery
It is possible to challenge a will if there is evidence that someone forged or altered it in any way. It is also possible to challenge a will if someone fraudulently obtained the signature of the testator.
Contesting a Will in Ontario
Challenging a will in Ontario involves a few steps. First, you need to file a Notice of Objection. This is where you explain why you’re objecting to the will and state your interest in the estate (like being the child of the deceased and a beneficiary in a prior will). When you file this notice, the court will not move forward with any applications for the appointment of an estate trustee (or executor) until the objection is resolved.
What if an estate trustee has already been appointed? Then, you will have to file a motion demanding the return of the Certificate to the court.
Courts in Ontario can try to determine what the person who made the will (the testator) truly intended. Figuring out their intentions can be tough, especially if they’re no longer around to explain.
Challenging a will is a serious legal matter, and getting the process right is essential to protect your interests.
When You need to Contest a Will in Ontario, Contact Beeksma Law
At Beeksma Law, we are experienced in dealing with will disputes and can help you through the process. We understand that this is a difficult time for families. Our team of estate lawyers balances compassion with professionalism to be your guide and advisor through this process. If you would like to discuss your case further or any of your estate planning needs, please do not hesitate to contact us today. We are here to help!
Why You Might Need a Litigation Lawyer in 2023
Disclaimer: This article on hiring a litigation lawyer in 2023 is intended for the purposes of providing information only and is to be used only for the purposes of guidance. Please note this article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
At Beeksma Law, we have been practicing law for quite some time and through different economic climates. We have seen how the practice of law changes as world conditions change. For example, we remember how our practices changed during the recession of 2008 and the boom of 2017.
By all accounts, we can expect the economy to continue to shift in 2023. Recently, Royal Bank predicted back-to-back negative quarters as early as January 2023. However, we don’t want to be all doom and gloom. We cannot control the changes that will take place in the economy, but we can control how we handle those changes.
Our experience has shown us that when there is a downturn in the economy, there is a greater need for litigation lawyers. At Beeksma Law, we can provide you with knowledgeable legal counsel and representation when it comes to litigation matters.
In this article, we will outline specific areas where you may need our litigation expertise as we move into 2023. We will also outline some steps you can take today to protect yourself, your families and your business.
Business Disputes
This is the largest area where we see an uptick in litigation files. You may find it harder to get paid by clients as people face harder economic times. You may find yourself in other disputes.
A knowledgeable lawyer is crucial when navigating these situations and ensuring that you are lawfully protected. (Of course, enforcing your contract means being able to show that you upheld your contractual obligations.)
However, it is also important to have a lawyer on your side to prepare strong contracts. Those strong contracts will protect your interests. Your budgets may be stretched a little thin, but this is one area that you should prioritize. Without a contract in place, you are more likely to have to pursue litigation to resolve your issue. This is much more expensive than having contracts prepared.
Arming yourself with strong, well-written contracts is the single best thing that you can do to protect yourself and your business before 2023.
Real Estate Litigation
We still see some sales held up by a sudden inability to close because the purchaser can no longer get financing.
When that happens, you need an experienced advocate to negotiate how to close the deal. However, if the parties cannot agree (a topic for a future blog post), a seller’s only option may be to sue.
Of course, you can protect yourself well before you get to that point. A prudent lawyer will be able to help you structure a sale that protects your interests. She will also help you document everything in the event you need to pursue litigation.
Estate Litigation
If you are an executor or administrator of an estate, you may face more inquiries from beneficiaries during tough economic times. When people are struggling financially, they may be more likely to challenge the terms of a will or trust.
In other situations, you may suspect your loved one’s power of attorney is mismanaging the estate, leading to disputes. It’s important to note there is a 2-year limitation period where you have known, or ought to have known that a power of attorney was mismanaging the estate. Therefore, you need to be aware of your rights and act quickly in these instances.
If you find yourself in the middle of an estate dispute, it’s best to consult with a lawyer early to protect your interests and the wishes of your loved one.
Preventing Litigation in 2023
Litigation is stressful, time-consuming, and expensive. It can also have long-term impacts on a business or individual’s reputation. That is why it is so important to protect yourself now before we move into 2023.
It’s said that the best defense is a good offense, and we could not agree more.
At Beeksma Law, we specialize in working with clients to prepare them for any legal issues that may arise. We can help you review contracts, provide advice on how to structure transactions, and more. We will also be there to represent your interests if a dispute arises.
If you think you may need a litigation lawyer in 2023, book a call today. We can help you navigate potentially difficult situations with confidence.