Estate Litigation: What Could Go Wrong?

The death of a loved one or family member is always difficult. Therefore, disputes over an Estate can often be protracted, emotional and complex. Proper Estate Planning can help mitigate the need for future litigation regarding the Estate, however, there are some instances where Estate disputes become unavoidable. Not only are these disputes stressful for all parties involved, but disputes can also lead to significant depletion of Estate assets. The following are some of the most common issues that can arise in Estate Litigation:

Power of Attorney Disputes

An Enduring Power of Attorney is a legal document that authorizes another party such as a trusted friend or family member (“the Attorney”), to manage another person’s (“the Donor”) financial decisions and assets while they are still alive. In Alberta, there are very strict rules which govern what a person acting pursuant to an Enduring Power of Attorney may or may not do. Disagreements may arise if the Attorney is thought to have mismanaged the Donor’s assets or affairs by:

• Failing to keep proper records and accountings for all monetary transactions entered into pursuant to the Enduring Power of Attorney;
• Misappropriating funds belonging to the Donor, or improperly selling off the Donor’s property;
• Exerting undue influence on the Donor in order to obtain Power of Attorney;
• Improperly gifting assets or funds belonging to the Donor.

If you suspect that someone is abusing their position as Power of Attorney, it is a good idea to speak with a Lawyer about the legal options and remedies available to you.

Contested Wills

Contesting a will means raising a formal objection regarding the validity of the will, usually based on the argument that the will does not truly reflect the actual intention of the party who made it (the “testator”). However, not just anyone can challenge a will. In Alberta, you must have standing, as well as sufficient grounds to challenge a will. In general, the individuals who have legal standing to contest a will are:

• The deceased’s spouse or common-law partner;
• The deceased’s adult children;
• The Public Trustee and the Trustees of represented adults;
• Beneficiaries, or persons who can otherwise demonstrate that they have a financial interest in the Estate;
• Attorneys acting under an Enduring Power of Attorney;
• Intestate Heirs.

In addition to having legal standing to contest a will, you must have sufficient grounds to do so. In Alberta, some of these sufficient grounds are:

• Lack of support for dependent family members;
• Concerns regarding the testator’s mental capacity at the time the will was created;
• Concerns regarding whether the testator was unduly influenced at the time the will was created;
• Technical validity of the will;
• Concerns that the will may be forged or fraudulent.

It is a good idea to seek legal advice before choosing to contest a will, to ensure that you have the proper standing, or sufficient grounds to do so.

Claims Against the Personal Representative

Also known as the “Executor” the Personal Representative is the individual who is named in a will to carry out the directions of the testator. In certain situations, a beneficiary of the estate or another person who has a legal interest in the Estate, may take the Personal Representative to court, if they feel that the Personal Representative has engaged in misconduct such as:

• Mismanagement of the Estate;
• Ineffective communication with beneficiaries;
• Failing to provide beneficiaries with a fulsome or adequate accounting of Estate assets;
• Misappropriation or theft of Estate assets;
• Delaying or improperly withholding an inheritance.

If you suspect misconduct on behalf of the Personal Representative, consulting a lawyer can help provide information on what steps can be taken, such as an application to remove the individual as Personal Representative, or an application for the Personal Representative to provide a full financial accounting.

We Are Here For You

At West Legal, we understand that litigation is never easy, especially when those disagreements arise between family members. We are here to help you work through the broad range of legal options available to you, in a way that meets your needs and your budget.