What Happens When A Will Is Contested And How Are Costs Paid?

At the start, an important thing to realize is that, if a will is successfully contested, it is set aside and the previous will becomes the valid will and determines how the estate is distributed among the beneficiaries.

Contesting a will is a very time-consuming and expensive process. It pays to be very certain that the older will is to one’s benefit before contesting the current one. If a will is successfully set aside and there isn’t a previous will, it would be dealt with as if it were intestacy and the Succession Law Reform Act Part II sets out the formula for how the estate is distributed.

In order to contest a will, very formal steps must be taken. First, the executors have to go before a judge to get an Order for Directions. An Order for Directions is an order of the court that sets out the ground rules. It outlines what the issues are going to be, who the parties are to the lawsuit, who gets notice when the examinations are going to be held, what documentation is to be produced, what medical records are to be obtained, and what lawyers’ records are to be obtained from the lawyer who prepared the will. Once that is completed, there are various cross examinations on affidavits and /or examinations for discovery, and eventually you work through the court process to a trial. This process can take many years.

In Toronto now, all estate disputes must be mediated. The parties must attend mediation to attempt to settle the case. The case won’t always settle here, but the court recognizes the benefit of mediation and, in Toronto at least, all parties must attend. If it doesn’t settle at mediation, the case eventually will work its way through to a trial where evidence will be called.
Estate cases are different from other cases because the deceased is not there to give evidence. It’s also not enough for a person to come to court and say, “Well, mom said she would leave me the piano.” That evidence in Ontario would have to be corroborated, under Section 13 of the Evidence Act. The person would have to bring in someone else who said, “Yes, we were there when mom said she could have the piano,” or “Here is a letter that mom wrote that said she would give her the piano.” There needs to be evidence to corroborate what the beneficiary is arguing.

It’s important to understand that it is not enough just to make a claim. You have to be able to prove that claim. In estate litigation there is quite a difficult burden of proof because you have to corroborate the evidence. Anything that is alleged to have been said by the deceased has to be corroborated by witnesses or other evidence.

In years past, people would make claims against an estate because, win or lose, they got their court costs paid out of the estate. They didn’t have to worry about paying their lawyer. The rules have changed, and the courts now will not automatically order that everybody’s costs be paid from the estate. If they feel that the challenger’s case was brought without merit, the loser could pay costs to the winning party plus their own costs. Because of this, people have to understand that there is a risk in proceeding with estate litigation if you are unsuccessful. Fees can be in the tens of thousands of dollars if a case goes to trial and even six figures depending on the case.
If you, or someone you care about, is dealing with estate law issues in the Markham, Ontario Region, contact Charles B. Ticker for a consultation.

This article is taken from a December 18, 2008 interview with Charles B. Ticker, Estate Lawyer with Charles B. Ticker Law Office, a Markham, Ontario Wills and Estate Law Firm. This article and website provide general information on legal and related matters and should not be relied upon as legal advice. If you require legal advice, you should consult and retain qualified legal professionals in your area to advise you about your particular situation and the law in your jurisdiction as laws vary from province to province, state to state and country to country.