Contesting a Will without a Lawyer (eBook)

Introduction xi
1 The Why: Pros and Cons of Suing an Estate 1
1. Potential Upsides of Suing an Estate 1
1.1 Principles 1
1.2 Stopping abuse or fraud 2
1.3 Carrying out the wishes of the deceased 2
1.4 Financial support 2
1.5 Closure 2
2. Potential Downsides of Suing an Estate 2
2.1 Length of time 2
2.2 Cost 3
2.3 Stress on you and your immediate family 3
2.4 Damage to family relationships 4
2.5 A steep learning curve 4
2.6 There might be less than you think in the estate 4
3. What Is Your Motivation? 4
4. Conflicts of Interest 5
5. Deadlines for Starting Your Lawsuit 6
6. Before You Start a Lawsuit, Consider a Demand Letter 6
2 Grounds for Contesting a Will 9
1. The Three Basic Types of Estate Lawsuits 9
2. On What Grounds Can a Will Be Contested? 10
2.1 Undue influence 11
2.2 Lack of testamentary capacity 13
2.3 Lack of knowledge and approval 14
2.4 Forged or fraudulent will 16
Contents
iv Contesting a Will without a Lawyer
2.5 The will was not properly signed and witnessed 17
3. Curative Provisions in Legislation 18
3 Relief Claims 21
1. Who Is Entitled to Ask for Dependant’s Relief? 21
2. What Exactly Are You Suing For? 25
3. Ramifications for Individuals Receiving Disability Support from the Government 25
4. What Factors Affect the Outcome of a Dependant’s Relief Application? 26
4.1 Competing claims 26
4.2 Size of the estate 35
4.3 Other assets you received from the deceased on his or her death 36
4.4 Length of the marriage 36
4 Resulting Trust and Unjust Enrichment 37
1. Resulting Trust and Unjust Enrichment 37
1.1 Resulting trust element one: There must have been a specific promise made 38
1.2 Resulting trust element two: Something that a reasonable person
would believe 39
1.3 Resulting trust element three: You must have taken steps to your detriment
because of the promise 39
1.4 Resulting trust element four: The promise was not kept 40
2. What Happens to the Promised Asset when You Claim Resulting Trust? 40
3. Unjust Enrichment 41
3.1 Unjust enrichment element one: Someone received a benefit 42
3.2 Unjust enrichment element two: You suffered a loss that was connected
to his or her benefit 42
3.3 Unjust enrichment element three: There was no juristic reason for the
benefit to go to that beneficiary instead of you 42
5 Clarification or Rectification of a Will 45
1. Clarification of a Word, Phrase, or Term in a Will 45
1.1 Executors remain neutral and nobody is being sued 46
1.2 Different paperwork 46
1.3 Strict rules about outside evidence 46
2. Exceptions to the “Limited Extrinsic Evidence” Rules 48
2.1 Exception one 48
2.2 Exception two 48
Contents v
3. Rectification of a Will 48
3.1 What do I have to prove? 49
6 Ownership of Joint Assets 51
1. Joint Ownership 51
1.1 Does the jointly owned asset belong to the estate or the survivor? 52
2. The Executor’s Position 53
3. Undue Influence 54
4. The Evidence Needed 54
7 Chambers Applications 57
1. Our Court System 57
2. Removal of an Executor 59
3. What Happens If Nobody Can Agree on Anything? 60
4. What Do I Have to Prove? 61
5. Passing of Accounts 62
5.1 Who can apply to pass executors’ accounts? 63
6. Procedural Questions 64
7. Preliminary Matters before Trial 64
8 How to Get Your Lawsuit into Court 65
1. First Step: Statement of Claim 65
1.1 An exception to the rule: The Originating Notice 66
2. Interlocutory Applications 66
3. Filing a Caveat 67
4. What Forms Do I Need? 68
5. Where Exactly Do I Start My Lawsuit? 69
6. How Do I Serve Documents on Someone? 69
6.1 Personal service by you 70
6.2 Personal service by a process server 71
6.3 Registered mail 71
6.4 Sending it to the other party’s lawyer 71
6.5 Time limits for service 71
7. Affidavit of Service 72
8. Court Dates 73
8.1 Court dates for trials 73
vi Contesting a Will without a Lawyer
8.2 Court dates for interlocutory applications 74
9 Proving Your Case 75
1. What Is the Standard of Proof? 75
2. Who Has Burden of Proof? 76
3. Does It Matter If Probate Has Already Been Granted? 76
4. Whom Exactly Do I Have to Sue? 77
5. What’s a Frivolous or Vexatious Lawsuit? 78
6. What Evidence Will I Need and How Do I Get It? 78
7. “Best Evidence” Guidelines 79
8. Types of Evidence Commonly Used in Estate Litigation 80
8.1 Capacity assessments 80
8.2 Medical reports 81
8.3 Police reports 82
8.4 Lawyer’s file 82
8.5 Estate documents 83
10 Preparing Affidavits 85
1. Different Kinds of Affidavits 85
1.1 Affidavit in support 85
1.2 Affidavit in response 86
1.3 Supplementary affidavit 86
1.4 Affidavit of execution 87
1.5 Affidavit of service 88
2. Who Can Make an Affidavit? 88
3. How Do I Write an Affidavit? 89
3.1 First person narrative 89
3.2 Firsthand/personal knowledge 89
3.3 Chronological order 90
3.4 Relevancy 90
3.5 Paragraphs 91
3.6 State the purpose 91
4. What Do I Do about Exhibits? 91
5. Once It’s Prepared, What Do I Do with It? 92
Contents vii
11 Preparing a Memorandum of Law and Argument 95
1. Legal Research to Support Your Case 95
2. Secondary Sources 95
3. Where Do I Find Secondary Sources? 96
4. What Is Precedent? 97
5. How Do I Know Which Cases Apply to Me? 98
6. Is There Anyone Who Can Help Me with Legal Research? 98
7. What Goes into the Memorandum of Law and Argument? 101
8. What Format Do I Use? 101
8.1 Introductory matters 102
8.2 Background facts 102
8.3 What has caused this matter to be in court 102
8.4 Statements about why you think the other party is at fault 103
8.5 Statements about how you are affected by the situation 103
8.6 Request for relief 104
9. Tips on How Your Memorandum of Law and Argument Should Look 104
10. How to Include Statutes and Cases in Your Memorandum 105
12 Cross-examination on Affidavits 111
1. Why Cross-examine? 111
2. When Are Cross-examinations Done? 112
3. Where Are Cross-examinations Held? 112
4. What Is the Procedure for a Cross-examination? 113
5. Who May Do Cross-examinations? 113
6. Who Can Be Cross-examined? 113
7. What May I Ask? 114
8. Preparing in Advance to Cross-examine a Witness 115
9. What Goes into My Examination Book? 115
10. What Is an Undertaking? 117
11. How Do I Decide on My Questions? 118
13 Costs 121
1. Can I Get Legal Aid? 121
2. Will the Other Side Cover My Costs? 121
3. What If I’m the Executor? 122
viii Contesting a Will without a Lawyer
4. How and When Do I Ask for Costs? 123
5. How Much of My Bill Is Covered If I Win Costs? 123
6. How Do I Fill in a Bill of Costs? 124
7. Can the Other Side Get Costs against Me? 124
14 Alternatives to Court Battles 127
1. Are There Alternatives to Fighting It out in Court? 127
2. Demand Letter 128
3. Negotiations 128
4. Without Prejudice 129
5. Mediation 129
Checklist
1 Is the Will Properly Executed? 19
2 To Whom Does the Jointly Owned Asset Actually Belong? 53
3 Beginning Your Lawsuit 73
Samples
1 Demand Letter 8
2 Affidavit in Support 93
3 Case Report 99
4 Memorandum Of Law and Argument 107
5 Examination Book Page 116
Tables
1 Curative Provisions by Province 20
2 Who Has the Right to Claim Dependant’s Relief? 23
3 Assets That May or May Not Interfere with Receipt of Government Benefits 27
4 Caveat Expiry Times 68
5 Where to File Your Statement of Claim 70
6 Time Limits for Service 72
7 Bill of Costs 125