Will Challenge

In Ontario a Will Challenge addresses a number of questions. Did the testamentary document comply with the formalities of execution? Did the testator have testamentary capacity? Was he subject to undue influence? Did the testator know and approve of the contents of the will? The answers to these questions will impact on the validity of a will.

Are Prenuptial Agreements Invalid Without Independent Advice?

Suppose a couple sign an agreement not to sue each other’s estate and one spouse did not get legal advice before signing the agreement. Would a judge hold that spouse to the agreement? In 2003, Justice Desotti, an Ontario Superior Court judge, said, “While I cannot conclude that there will be no agreement involving an unrepresented party that is not declared to be valid, I am certain that it will be the exception and not the rule.” Based on this decision it seems as if, as a general rule, when one of the spouses did not have a lawyer the agreement will be set aside. It’s 11 years later – let’s see how the law has evolved.

Read more

Setting aside unconscionable prenuptial agreements

Lawrence Wilkes, a 62-year-old sophisticated businessman, proposed marriage to Mary. She was only 21 years old, developmentally handicapped and very unsophisticated. Lawrence took Mary to his lawyer where, without the benefit of independent legal advice or disclosure of Lawrence’s assets, she signed a prenuptial agreement. By so doing, Mary gave away her right to make any claims against Lawrence or his estate. When Lawrence died, Mary was left with nothing and she sued. Her lawyer said that the prenuptial agreement was “unconscionable” and should be set aside. The case was heard in Montana.

Read more

Depending On Where You Live, Parents’ Moral Obligations To Children Entitle Them To An Inheritance

In the Verch case, Albert left his entire estate to his daughter-in-law Dianne by-passing his estranged son Ken – Dianne’s estranged husband – and his daughter Donna who resided in Alberta. Ken and Donna brought an application to have Albert’s Will set aside on numerous grounds. In their final submissions at trial, their lawyers included an argument that Albert had a legally enforceable moral obligation to provide for them in his Will. The Ontario court dismissed the application. Some might argue that this decision stands for the proposition that, in Ontario, moral claims of adult children against their parents’ estate are not legally enforceable.

Read more

Setting Aside Unconscionable Prenuptial Agreements

Lawrence Wilkes, a 62-year-old sophisticated businessman, proposed marriage to Mary. She was only 21 years old, developmentally handicapped and very unsophisticated. Lawrence took Mary to his lawyer where, without the benefit of independent legal advice or disclosure of Lawrence’s assets, she signed a prenuptial agreement. By so doing, Mary gave away her right to make any claims against Lawrence or his estate. When Lawrence died, Mary was left with nothing and she sued. Her lawyer said that the prenuptial agreement was “unconscionable”

Read more

Entitlement to Support Despite Prenuptial Agreement – The Butts Case

Challenging a prenuptial agreement in the context of estate litigation happens more often than you think. When wealthy people marry, their lawyers often advise them to ensure that their fiancé signs a prenuptial agreement. The goal is to protect the wealthy person’s family in case, God forbid, the marriage breaks up and/or the wealthy spouse dies. So, if the couple each hire good lawyers and the prenuptial contract clearly spells out their agreement, is that ‘pre-nup’ still open to challenge?

Read more

Distribution of estate by an Estate Trustee During Litigation

Is it appropriate for a court order to permit an Estate Trustee During Litigation (“ETDL”) to distribute the Estate? Possibly. The statutory authority to appoint the ETDL is found in Section 28 of the Estates Act, which provides that an ETDL has all the rights and powers of a general administrator, other than the right of distributing the residue of the property. Generally, an ETDL is appointed when the court feels a neutral third party should be administering an estate to preserve estate assets.

Read more

Limitation Period Cheat Sheet

This cheat sheet is intended as a quick reference guide for estate litigators dealing with limitation periods. For a comprehensive review of this topic I refer the reader to articles written by senior members of the bar I have found very useful which I believe are worthwhile to review.

Read more

Dealing with a Testator Whose English is Suspect

It seems self evident and almost trite to say that a will must reflect the intention of the testator. Accordingly, those parties who come to court and submit that the will in question is authentic and valid must prove, among other things that the Testator knew and approved of the content of the will. Mistakes in how instructions are taken and the execution of the will may result in disappointed beneficiaries and liability to the solicitors who took the instructions, drafted the Will and saw to its execution.

Read more
Back To Top