Wills, Estates & Trusts Litigation

On what grounds can you challenge a will in Ontario?

A valid will must be testamentary in nature: that is, a free expression of the wishes of the testator with respect to the distribution of the testator’s estate upon death. It must also comply with the requirements of execution set out in Part I of the Succession Law Reform Act. Common challenges to the validity of a will include:

• Failing to comply with the requirements of due execution (though with recent legislative changes, the Court may have discretion to grant relief from strict compliance in limited circumstances);
• Lack of testamentary capacity;
• Lack of knowledge and approval of the contents of the will (e.g. “suspicious circumstances”); and,
• Undue influence (e.g. coercion or threats of violence).

To discuss either the defence or challenge of a will, contact Pinto Shekib LLP to schedule a free consultation.

A Certificate of Appointment of Estate Trustee, more commonly known as probate, is required when an estate trustee applies to Court to be formally appointed to administer the deceased’s estate. Anyone who believes that the will is invalid can object. Probate is not always required to administer an estate, and it is important to speak to a lawyer about the appropriate options.

To discuss your probate and estate administration case, contact Pinto Shekib LLP to schedule a free consultation.

In Ontario, a person is presumed to have capacity to make decisions, and compelling evidence is often required to overcome that presumption. Depending on the task at issue, the test for capacity may vary. For example, a person may have capacity to make a Power of Attorney, but not capacity to make a will.

A finding of incapacity may have material consequences. For example, if a person did not have capacity to make a will, such that the will is invalid, then the estate property may be distributed according to Ontario’s intestacy rules, rather than as the deceased may have intended.

Other important issues in capacity litigation arise when a person becomes mentally incapable of handling his or her own property or becomes unable to make personal care decisions. We can assist you in applying to Court to be appointed as a guardian for the incapable person by filing a guardianship application. These applications can be complex and require sworn affidavits, expert evidence, capacity assessments, management plans and much more.

Our lawyers can help you navigate these complex and sensitive matters. Contact Pinto Shekib LLP to schedule a free consultation.

A testator generally has the freedom to choose who gets the testator’s assets after death. Part V of the Succession Law Reform Act, however, provides an exception to this rule: that is, a “dependant” may bring an application seeking an award from the estate on the grounds that the dependent has not been adequately provided for out of the estate.

Dependant is broadly defined as a spouse, parent, child or sibling of the deceased to whom the deceased was either providing support or was under a legal obligation to provide support immediately before death.

To determine the amount and duration (if any) of support, the Court looks at a broad range of factors, including:

• The dependent’s current and future assets and means;
• The dependant’s capacity to contribute to his or her own support;
• The dependant’s age and physical/mental health;
• Any agreement between the deceased and the dependant; and,
• Claims that any other person may have as a dependant.

Such applications are time sensitive and generally must be made within 6 months from the issuance of a Certificate of Appointment of Estate Trustee. To discuss Dependant Support Claims, contact Pinto Shekib LLP to schedule a free consultation.

Family members often enter into “handshake” agreements involving assets (such as real estate, bank accounts, etc.), without clearly outlining the nature and scope of their legal rights in relation to the assets. For example, a son may contribute to the renovations and upkeep of an elderly parent’s home, with the understanding that the son will have some beneficial interest in that property. If, after the death of the parent, the estate denies the son his interest in the home, the son may have remedies available to him in equity.

At Pinto Shekib LLP, we can help you bring equitable claims against an estate, or defend such claims on your behalf, including:

Constructive Trust Claims

A constructive trust is a proprietary remedy, which requires the claimant to show (i) that monetary damages are inadequate; and, (ii) the claimant’s contribution is linked or causally connected to the property over which the trust is sought. In such a case, a Court may determine that even though a property is held in the name of person X, another person, Y, has some right to the property as a result of person Y’s contribution to it. Consequently, person Y may be awarded a constructive trust proportionate to person Y’s contribution to the property.

Unjust Enrichment and Quantum Meruit Claims

A quantum meruit claim is simply one of the established categories of unjust enrichment claims. It is a claim that there has been unjust enrichment, and the remedy should be a monetary remedy calculated on the basis of quantum meruit (fee-for-services) rather than a proprietary remedy (a trust over specific property).

These claims are often advanced against the estate on the grounds that the deceased obtained an unfair benefit at the expense of the claimant. For example, the claimant may have provided services to the deceased in exchange for the promise of an inheritance. When the inheritance is not forthcoming, a claim in unjust enrichment and quantum meruit for the value of the services may be available to the claimant.

Resulting Trusts

There are situations where legal title to an asset may be in one person’s name, but the law presumes that a trust was created so that the legal or beneficial ownership belongs to another person. For example, where a parent gratuitously transfers assets to an adult child, either absolutely or jointly with the parent, the law presumes that the child was intended to hold that property “in trust” for the parent’s estate. While this presumption can be rebutted with clear, cogent evidence, this is an area ripe for litigation.

If you believe that you are entitled to an estate left by a deceased person, you may have an equitable claim available to you. Contact Pinto Shekib LLP to schedule a free consultation.

In Ontario, trustees are generally required to administer a trust in accordance with the terms of the trust. However, there are certain limited situations where a trust can be varied:

• By the trustee, where permitted to do so in the trust document;
• When all of the beneficiaries who are entitled to share absolutely in the trust are adults, of full mental capacity, and agree to wind up the trust; and,
• By application pursuant to the Court’s inherent jurisdiction, or through the Court’s jurisdiction over charities, or under the Variation of Trusts Act.

A trustee who acts without authority in varying the terms of the trust will be in breach of his or her fiduciary duties. Our lawyers can help you read the trust document thoroughly and apply the relevant trust principles to your case. Contact Pinto Shekib LLP to schedule a free consultation.

Ontario Courts have the inherent jurisdiction to remove trustees, though our Courts have been deferential to the testator’s choice of executor and trustee. There may be situations, however, where Ontario Courts order that the trustee be removed, including where:

• The trustee has failed to administer the estate in a prudent or timely manner;
• The trustee refuses or is unable to provide a proper accounting of the estate;
• The trustee has committed a breach of trust; and,
• The relationship between the trustee and the beneficiaries is no longer constructive and has broken down.

Ultimately, no particular circumstance will guarantee that a removal application of a trustee will be successful. Each application is determined on its own unique set of facts. If you are bringing or responding to a removal of trustee application, our lawyers can help you navigate this challenging area of law. Contact Pinto Shekib LLP to schedule a free consultation.

Broadly speaking, a passing of accounts is a formal procedure that the Court uses to examine the accounting and conduct of an estate trustee, attorney for property, a guardian of property or a trustee of a trust.

Estate trustees, in particular, may voluntarily bring an application to pass accounts. Alternatively, the estate trustee may be compelled to do so by the Court. The accounts are either approved as presented, or amended by Court order and passed in a revised form, or not passed at all.

While the beneficiaries of the estate can compel passing of accounts, care should be taken before doing so. Beneficiaries may be liable for the estate trustee’s costs for same, if a Court ultimately finds that the application was unnecessary.

To discuss either the commencement of, or a response to, a passing of accounts application, contact Pinto Shekib LLP to schedule a free consultation.