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Your Estate Litigation Lawyer in Calgary

There are numerous estate issues that can create legal disputes and claims, resulting in estate litigation. Many of these can be avoided by proper estate planning but, even with proper planning, disagreements can arise, especially among family members.

Following are some of the more common estate disputes:

Contesting a Will (Probate Disputes)

Before beginning the process of challenging a will, you must ensure that you have legal standing and sufficient grounds to challenge the will.

If you meet all these conditions, you may apply to the court to have the will deemed invalid. We suggest you first get legal advice before deciding whether or not to proceed.

Read more about contesting a will here.

Dependents’ Support Claims

The Alberta Estate Administration Act allows for dependent family members to receive adequate support from a deceased person’s estate. Dependents include a spouse, adult interdependent (common law) partner, or dependent child of the deceased.

If a will or trust fails to provide adequate support, the dependent(s) can challenge the relevant document.

Executor (Personal Representative) Claims

Executor misconduct is serious, and it’s easy for beneficiaries to get frustrated.

If you truly believe there is some type of executor misconduct, there are ways of handling the situation. The beneficiaries can take the executor to the court, which might result in the court forcing the executor to give a full accounting of financial transactions. The court can also remove the executor or prevent the executor from receiving a fee.

Some examples of executor misconduct are:

  • Withholding inheritance
  • Not communicating with beneficiaries
  • Inadequate accounting to beneficiaries
  • Breach of fiduciary duty, or mismanagement
  • Theft, misappropriation, or improper dissipation of assets
  • Negligence
  • Delay

Executor-beneficiary conflict of interest is another major reason for disputes. Executors have a duty to act in the beneficiaries’ best interest. Aside from receiving compensation in the form of an executor fee, they are not entitled to benefit from the will. (They can, of course, benefit as beneficiaries, but not as executors.)

Power of Attorney Disputes

An enduring power of attorney that is in effect gives one or more people the power to manage a person’s assets while they are still alive. Older adults often appoint family members as their attorneys if they are having difficulty managing their financial affairs, or if they want to ensure their affairs are properly managed if they become mentally incompetent.

In most cases, a power of attorney causes no issues. However, once the attorneys begin managing the donor’s affairs, there may be disagreements among family members, especially siblings, which can lead to legal disputes. For example:

  • An attorney may be accused, rightly or wrongly, of exerting undue influence on the donor to obtain a power of attorney.
  • Other family members, especially siblings, may question the actions taken by the attorney if they feel that it will negatively affect their inheritance.
  • The attorney may be accused of financial mismanagement, which also affects the value of their inheritance.

A power of attorney can also create the opportunity for financial abuse. In some cases, attorneys have been known to steal funds or sell property or other assets.

If you think someone is abusing their position as an attorney, or if you hold an enduring power of attorney and have been accused of abusing it, talk to an experienced estate litigation lawyer. That way you’ll understand the options available to you and the other party and can make an informed decision regarding how to proceed.

Jointly Held Assets

Property, such as real estate or a business, can be owned by more than one person as either a tenancy in common or joint tenancy. These have different treatments in the distribution of an estate when one of the owners dies.

In a tenancy in common, the deceased’s share of the property becomes part of the deceased’s estate. A joint tenancy, however, usually carries with it the right of survivorship where the deceased’s share will be transferred to the other surviving joint tenant(s).

As people age and begin to do their estate planning, a common strategy is to share ownership of an asset in joint tenancy with another person, quite often adult children. This is typically done to avoid the need for probate or to simplify the administration of their estate. But it can, in some cases, lead to estate litigation after death. For example, if one of the children receives an asset under joint tenancy, the other children may question whether that asset was really intended to be a gift to that child.

The current legal treatment was confirmed in 2007 by the Supreme Court of Canada. If the transfer of property to an adult, independent child was made with no consideration in return, the child is presumed to have held the property in trust for the estate, and the property will become part of the estate, distributed according to the deceased’s will.

The onus is on the child to provide evidence that the parent’s intent was to transfer the property as a gift. This can be very difficult to prove to the court but, if successful, that child will retain ownership.

Quantum Meruit & Unjust Enrichment Claims

Quantum meruit—a Latin term meaning “as much as he has deserved”—is a reasonable payment for:

  • Services rendered, but not completed under a legally enforceable contract, or
  • Services rendered in the absence of a contract (i.e., from a verbal promise to pay)

If the deceased, prior to death, failed to pay for these services, there is an ‘unjust enrichment’ of the deceased’s estate, and a claim may be made against the estate by the provider of the services. In the absence of a legal contract, however, these claims may be very difficult for the claimant to prove.

Your Friendly Estate Litigation Lawyer

We can advise you on all of the above issues as they pertain to your specific case, and provide our opinion on the challenges you may face if you decide to proceed. Contact us today to discuss any claim on which you are considering legal action.

Great experience working with John and his staff (the girls). John worked with us and our special needs (leaving the province) and we left for our new home with a positive state of mind thanks to John.

- Kelley Legace and Ed Schroeyers