Sometimes people want to make a claim for services that they provided to the testator. The legal term is “quantum meruit”. Sometimes people take care of someone because they are promised something in the will. Then the will doesn’t have that provision in it. Or sometimes the person is promised something before the person dies, but the person dies before giving them that gift. In other cases someone may have given up something to enrich the testator’s estate, or provided long-term care without any payment. For instance, someone may give up their home and job to move in with the testator to take care of a business, home or farm.

In these cases it’s important to prove that you made a contribution and received nothing in return. If you took care of a parent, but received free room and board throughout your time living with him or her, then you have received something of value in return for your services (although you may still be able to make a claim). If you’re taking care of somebody, you would have to look at how much it would cost if they hired a professional care giver. How much did the person save by having you take care of him? Each circumstance is very different, but it is a claim that is made fairly often.

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If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

Often, when the issue on a will challenge is whether or not the testator had mental capacity ( that is, whether the testator to understand the terms of the will that’s being put forward, at the time it was signed) you’re dealing with a legal file that consists of many documents. There may be a large number medical records of the testator, especially if he or she had been ill for a long time before death or if he or she had been under hospital care or the care of several medical professionals. I need to locate and gather all of those documents to see what was written about the testator. I need to read doctors’ and nurses’ notes, test results, etc. Often, if the will was done while the person was in the hospital, I need to closely chronicle what happened during that time. Often we engage a forensic doctor to write a report saying whether or not, based on the medical records and observations of others who were with the testator, the person had capacity at that time the will was signed.

This can be an expensive and time-consuming process. If someone was elderly when they died, they may have a large number of medical records from many sources that need to be found. Their bank and investment records need to be reviewed as well. In total, these records can fill several boxes and each document may require close examination. There have been cases where thousands of pages of documents have been accumulated, and among them there may be a couple of lines or a short note somebody made in a medical chart or other record that turns the case one way or another.
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If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

Generally, if you are going to contest a will, you need to start proceedings in the jurisdiction in which the deceased last resided, or if they have property in Ontario, where that property is located. If proceedings are started in Toronto, they require a mandatory mediation session. Often, when a case is presented to a judge in other jurisdictions, mediation is recommended by the judge before proceedings begin.

The consequence of a dispute over a will is usually a rift in the family. Mediation can sometimes help that, because it’s helpful to have a third party who brings a different perspective to the lawyers and the parties involved. The mediator is also helpful in explaining costs to the parties involved. Even though that information is always given by their lawyers, the mediator’s evaluation often hits home to the clients more effectively. He or she will be very clear about the amount of money and the amount of time that will be expended in a lengthy trial.

For some cases, there is also a mandatory pre-trial conference before a judge. This is usually held about two to six months before the trial. A judge will meet with the parties and their lawyers and attempt to resolve the issues, or at least narrow them down, before the trial, in an effort to save time and expense.

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If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

People will want to contest wills for many reasons. Sometimes there is a belief that there is another later will in existence or that the will that is being put forward isn’t valid, for several reasons. Sometimes, too, the client may only have an issue with the person who has been appointed as the estate trustee, and believes that he or she won’t act in the best interests of the beneficiaries, or may be untrustworthy. Clients may also believe that the estate has been divided unfairly because the testator was unduly influenced by a beneficiary or that suspicious circumstances existed surrounding the preparation of a will. If there is some concern concerning the validity of a will at that point, I can file a document, known as a Notice of Objection, with the court even before the application for probate, so that when the application is filed, the court will reject it because the objection is on file. A large percentage of the time someone, who will be attempting to probate a will that may be invalid, often files the application for probate quickly after the death of the testator, probably hoping to catch others who may have an interest off guard; therefore, it is important that if someone does suspect foul play to see a lawyer as soon as possible to protect their interests.

Sometimes when people come in, they’re not even sure of all the details, but they are uncomfortable with the situation. They say, “You know ‘so and so’ spent a lot of time with my dad before he died, and I heard some rumours” or “My mom told me she was going to see a lawyer, but I don’t know if she ever did.” My job then becomes to gather as much information as possible to put my clients at ease or to discover that their concerns are based on fact. Sometimes my clients concerns are prompted by not being informed clearly and promptly by an executor about what is happening with an estate, and that makes them suspicious. The person who should be giving them the information isn’t, and they want to find out things before they can take a position. And sometimes it’s just that the person who should have given them the information is lazy, or didn’t realize they had to, or they were busy with something else.

Often people come in and think that, because there’s been some kind of uneven distribution under a will, such as one child inheriting more than another, then that automatically means that the will can be successfully challenged, even if they know that the will does reflect the testator’s wishes. If the will meets the technical test for validity (such as being properly witnessed) and if it does express what the deceased person really wanted to do, then it will be valid, even if it is unfair. There may be other legitimate reasons for a person to make a claim against an estate for more than was left for them in a will, even if the will itself is valid.

People need to know that they should see a lawyer, if they have any doubts or questions. The lawyer can make sure that their questions are answered, and the issue may be resolved very quickly. If people wait too long, they may not be able to get their concerns addressed. People know their own family, so they should trust their instincts and experience if they are uneasy.

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If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

But, even if you don’t want to talk about it, it’s a good idea to keep a list of your assets in your safety deposit box, with your lawyer, or attached to your will, including a description of them and the location of your bank accounts and other investments. The list should also be updated from time to time This may also good time to talk to a lawyer. For a few hundred dollars spent at a consultation, a lot of time and expense can be saved down the road for your executor and beneficiaries, who may have to spend time and resources after your death to make sure that all of your assets have been accounted for.

If an estate trustee doubts that all the assets are accounted for, it is his or her duty to take reasonable steps to find them. If it is suspected that the assets include real property then a lawyer can help with searches. If the asset is a GIC or bank account, the estate trustee can inquire at the bank or investment firm. Once the estate trustee has been issued a Certificate of Estate Trustee (commonly referred to as having the will probated), he or she then has the power to be able to make those inquiries. There are also people who specialize in estate matters that can be hired to make searches. This is time and expense that can be saved if a list of assets is filed along with the will, as sometimes if someone suspects that there are additional assets that the estate trustee has not disclosed, and there is no proof one way or the other, the estate could end up in litigation.

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If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

He or she can give you advice and say either you are right or you are wrong. A lawyer with a few questions may be able to determine whether there is something to your concerns or not. If you have some type of suspicion or some reason to believe that something is wrong then I would say speak to a lawyer and see if your concerns are well founded or not, and if there is anything in law that can be done then it should get underway quickly. It’s important that you bring your claim early so that the assets are what we call in specie, or mainly in the form they were when the person died. If you wait too long, the estate trustee may have already distributed the assets according to the directions of the will.

Most wills are written to give the estate trustee (executor) discretion to settle claims against the estate if he or she believes it is in the best interests of the estate. However, the estate trustee is not under that obligation even if you are to write them a letter or talk to them and say, “I think that there’s something wrong here.” The obligation is on the person with a potential claim to notify the estate trustee, and to bring legal proceedings against the estate if necessary.

The estate trustee has an obligation to do his or her job in a timely manner, so it is wise to act quickly. Trustees are aware that delay can prejudice the beneficiaries, and though the estate trustee has an obligation to the estate first, he or she also has an obligation to the beneficiaries. The beneficiary is entitled to a legacy and to receiving it in timely manner. For example, a downturn in the stock market may diminish the value of investments that could have been sold earlier with the proceeds distributed; taxes also need to be filed on time or penalties and interest are applied. The estate trustee will keep these issues in mind when doing his or her job. Beneficiaries and creditors also have a right to know what is going on with an estate settlement and can ask for updated reports.

If you are uncertain about whom the trustee is for a will, you can file a document with the court where the deceased person resided immediately before his or her death.

So if someone does make an application to be an estate trustee whether with or without a will, you will be notified. Then it’s up to you to go down the court to find out what it’s about, and you can start other proceedings if necessary. If you know, for instance, who the trustee is but you’re objecting to that choice, you can file a Notice of Objection even before that person makes an application.

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If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

Often, if the estate is substantial, there will be a professional, such as an accountant or investment counselor, who has knowledge of the testator’s assets, and is able to assist in locating them. In the case of a smaller estate, this may not be the case. If you are the estate trustee it is your obligation to determine what the assets are as soon as reasonably possible, especially if some assets need to be dealt with right away. You should also make an application for a Certificate of Estate Trustee through a lawyer, who will help you with a checklist of what must be done. I would say that, if you are hesitating to make an application because you don’t think there’s going to be any kind of contentious issues, you should still do it. Many times people think if the deceased person has a joint bank account, for example, that there is automatically a right of survivorship, and that nothing has to be done with the account, but that is not necessarily the case. If nothing else, tax returns will have to be filed, or perhaps house will have to be sold, so it is important to have a grasp of all of the person’s assets and what your responsibilities are.

If you are the beneficiary under a will, and you feel that the estate trustee is not acting properly, you should also not delay going to a lawyer about your concerns. People sometimes delay taking this action because they don’t want to appear greedy, or as if they didn’t care about the person who has passed away, or perhaps they don’t want to confront the estate trustee, who may be a close family member or friend. People often try to work this out with a family member but this can lead to upset emotions that can change what were once positive relationships. This is a good time to ask a lawyer to intervene instead because a lawyer can take some of the emotional component out of the situation. If I am retained by a concerned beneficiary in such cases, I will often explain to an estate trustee that the beneficiary has hired me not because of anything personal against the estate trustee but because my client just wants to have someone who is more detached emotionally explain his or her concerns, and attempt to resolve them to everyone’s satisfaction.

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If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

The person needs to make an application to be an estate trustee,. If the person obtains the consent of the majority of people entitled to a share of the estate, then usually a bond will not have to posted, but if not, it may be unless a court orders otherwise, The amount of the bond depends upon the value of the estate when the application is made. If a person is applying to be the estate trustee, they also need to notify anyone who may have a beneficial interest in the estate. If the person can get the consents of the beneficiaries beforehand, those consents can be filed along with the application. If there are no objections, a Certificate of Estate Trustee without a Will is issued.

If there is a will, the document is called a Certificate of Estate Trustee with a Will. You don’t usually need a bond, if you are appointed by a will to be the estate trustee. Sometimes, posting a bond is requested if the estate trustee lives outside Ontario, but often that can be set aside.

It’s not always necessary to have someone officially appointed as estate trustee and there are many estates where it is not done. You very likely will need an official appointment if the deceased person had real property and you are going to transfer that to somebody else. The Land Titles office usually requests official documentation.

If you are uncertain about whom the trustee is for a will, you can file a document with the court where the deceased person resided immediately before his or her death.

So if someone does make an application to be an estate trustee whether with or without a will, you will be notified. Then it’s up to you to go down the court to find out what it’s about, and you can start other proceedings if necessary. If you know, for instance, who the trustee is but you’re objecting to that choice, you can file a Notice of Objection even before that person makes an application.

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If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.