Estate Litigation | Will Disputes

Our estate litigation lawyers at Massey LLP support beneficiaries and executors (estate trustees) when suing, challenging or defending estates and trusts. Massey’s dispute lawyers approach handling all matters with sensitivity and tenacity to achieve a fair and proper outcome.

Estate litigation is a highly complex and technical specialty within civil litigation, governed by a myriad of rules, laws and historical precedent, making it vital to have the estate litigation lawyers from our team at Massey LLP guide your will challenge, or will defence.

Our estate litigation lawyers have experience defending wills when they are right, so as to honour the last wishes of the deceased, and we are equally tenacious when challenging a will when something is wrong

Challenging a will

Are you a beneficiary or someone who should be a beneficiary and have been cut out of will? Disinherited? Was a will written under suspicious circumstances, like placing a person into duress or imposing undue influence on the deceased when they were alive? Our will dispute lawyers can file a legal action, challenging a will.

Defending a will

Are an executor (estate trustee) or beneficiary trying to defend a will and truly honour the last wishes of the deceased? Is someone trying to insert themselves into the will after the death of a loved one? Our estate litigation lawyers can help defend that will.

A will dispute lawyer notes that if you are contesting the validity of a will; challenging a will for other reasons you believe to be true; or you are the estate executor (trustee) or a beneficiary who wants to defend the legitimacy of a will against claimants trying to claim what was left to you, it’s important to have the deep estate litigation experience of a will dispute lawyer from our team at Massey LLP on your side.

The estate litigation lawyers at Massey LLP know that while a departed loved one can put good intentions and thought into their Estates, Trusts and Succession Planning, those left behind can see things differently. Whether it is through the lens of grief, the complexities of family dynamics, or the steadfast belief that the will itself is flawed, unfair or drafted under suspicious circumstances, a will challenge may result.

Our will dispute lawyers can help when you believe challenging a will is the required step.

Why work with our estate litigation lawyers?

Our estate litigation lawyers build upon our deep knowledge of estate law, which is governed by the Estates Act (EA), and emphasize our unique approach to resolving will challenges and estate disputes.

We are pragmatic.

The advice we give is blunt.

We don’t tell our clients who are challenging a will or defending a will what they want to hear; rather, the advice we give is what you need to hear based upon the law, the outcome of similar past cases, and our assessment on how a judge is likely to rule on the case.

A will dispute lawyer at Massey LLP knows that estate litigation is a highly personal and emotional process requiring an advocate capable of building a solid relationship with a client who is going through this difficult time – knowing there is always a backstory.

When our clients have what we believe to be a valid claim, the strength of our estate litigation lawyers truly comes to light. Whether we take the approach of a negotiated settlement, mediation outside of court, or a full-on fight in court, our estate litigation lawyers are ready to navigate the various complexities of estate litigation matters.

We are proud of the approach we take because while the law is the law, in estate litigation things can get very personal and simple questions of law are often intertwined with realities of family dynamics and grief. Our team of estate litigation lawyers are savvy and recognize these intricacies by not only bringing to the table the requisite legal experience, but also a deep understanding of the human side of conflict so that we can effectively defend legitimate wills against a bogus claim or launch a claim with merit against an estate.

Massey LLP’s estate litigation lawyers are are led by Jeffrey Kroeker, who also runs our international business practice, which means he brings a unique understanding of cross-border estate issues and the dynamics of high-net-worth estates or those that contain family businesses.

As a will dispute lawyer, Jeffrey’s approach places emphasis on the negotiation and mediation of will challenges and disputes to get to a fair resolution and to avoid the costly expense of a trial. However, if that fails, you can have confidence that Jeffrey and our team of estate litigation lawyers will be ready to take the matter to court for a judge to decide.

Five areas of focus of our estate litigation lawyers

Massey LLP’s estate litigation lawyers can handle any number of estate or trust related disputes. In some instances, we represent executors of an estate (called an Estate trustee in Ontario) or trustees of a trust, on how to fulfill their duties and meet their legal obligations to beneficiaries.

In some instances, our estate litigation lawyers report, beneficiaries demand that estates or trusts be administered contrary to the wishes of the person who left the money or assets, or someone who didn’t get an inheritance demands a share to which they are not entitled. They may even file a claim against the estate, challenging the will.

In those instances, we act for the estate trustee on behalf of the estate and defend the estate from the will challenge. In other instances, a beneficiary who is upset how an estate is being administered or someone who is left out of a will or trust wants to challenge how the will or trust was structured or administered. Our estate litigation lawyers regularly act for those who want to commence a will challenge or a challenge to a trust.

While there are many aspects to estate disputes and trust disputes, the five main areas in which our estate litigation lawyers advise clients are:

Hundreds of thousands of dollars, even millions of dollars, can be at stake in a will challenge or an estate dispute. Regardless of what side you are on, the situation can be stressful and life-altering.

A beneficiary could lose a lot of money if someone makes a claim against an estate. Conversely, someone could stand to gain a lot, too, at the expense of someone else. Sometimes the situation is fair, sometimes it isn’t.

For instance, if the will was not properly drafted or the will was signed under suspicious circumstances, under duress, undue influence or when the deceased lacked mental capacity while they were alive, then our estate litigation lawyers can guide and advise you on your options and represent you if you need to launch a legal action challenging the will.

We are in the midst of the largest transfer of intergenerational wealth from baby boomers to their children. As people live longer, often when they age or suffer a disability, many adult children are being called upon to act as an attorneys for property (including finances) or for health (or both). These appointments happen while the decease is still alive, and authority is granted to another using a powerful document called a power of attorney (POA).

POAs grant huge, delegated authority to the named person, especially when it comes to property and finances. Our estate litigation lawyers point out that this matter is often a sleeper issue because when someone is named an attorney for property or finances, they can transfer property and monies to themselves or others before the will takes effect because the testator (the person who wrote the will) is still alive.

Someone acting as an attorney must keep very detailed records because they can be compelled to account for every penny. When the testator dies, our estate litigation lawyers have seen situations where the attorney for property treated the money and assets under their care as if it were their own and spent major sums of money on themselves (or friends), depleting or even bankrupting the estate and leaving beneficiaries empty-handed and asking questions like:

   “Why is there so little money left in the estate?”

   “Where did all the money go?”

   “Who authorized the spending? Where was the oversight and accountability?”

   “Did the power of attorney get improper benefit?”

   “Why is there so little money left in the estate?”

If you are an estate trustee and assume control over an estate where you suspect an attorney for property behaved improperly, or you are a beneficiary who has lost what was rightfully given to you by the deceased, then call our estate litigation lawyers fast and take action.

Our estate litigation lawyers advise that a very serious obligation of every executor/trustee (and attorneys for property as well) is to maintain accurate records of the monies and assets under their control. Upon request, these records must be made available to beneficiaries, but sometimes estate trustees don’t do their jobs properly or don’t like to be questioned, report our wills dispute lawyers.

That is where our estate litigation lawyers come in, and they file an application for the accounts to be passed and scrutinized by a judge — a formal process that creates transparency for all involved.

Additionally, under the Trustee Act and the Substitute Decisions Act, when there’s an application to pass accounts, all records can be ordered for trustees or attorneys for property and they must be submitted to the court for an accounting and approval. If something is not right, our estate litigation lawyers will try to trace the problem and try to find a way to repatriate money back into the estate.

An emerging area of estates law is accounting for monies and assets spent and used while the deceased was alive and had appointed someone to act as their attorney for property/finances. Our will dispute lawyers note that all too often, those who hold powers of attorney don’t take accounting—or accountability—part of the job seriously that requires them to maintain detailed records and accounting of all monies and assets under their control. If they fail to do that and deplete the estate, then those monies will be traced, and they will need to pay it back.

Our estate litigation lawyers have successfully resolved a number of these powers of attorney and passing of accounts disputes for both for executors (estate trustees) and also for beneficiaries of the estate. We first try to use a negotiated settlement approach, escalating to mediation, and if we cannot find a resolution, then we go to Court and seek judgement on the matter.

1. Our estate litigation lawyers note that it is banal to say that in some instances, estate and trust disputes can get very intense and very personal. Our will dispute lawyers advise that, if there is a concern that the estate trustee is not properly managing the estate, or there is a fear that they may lose or use monies improperly during an estate dispute, then a powerful tool available to litigants is seeking an order of the court to appoint an estate trustee during litigation (ETDL).

The ETDL can be granted sweeping authority to look after and administer an estate while the various parties go through litigation. The ETDL becomes an independent officer of the court whose singular goal is to protect the estate, trace monies and assets and to repatriate assets back to the estate.

Fundamental to the position of an ETDL are the ability to:

   investigate improprieties

   collect money owing to the estate, and

   guard and protect the value of the estate.

Our estate litigation lawyers have successfully had numerous ETDLs appointed to administer an estate in the midst of a nasty dispute.

Additionally, the estate litigation lawyers at Massey LLP can act as an impartial ETDL and take an appointment if one side of a dispute (or both) seek to have us appointed during estate litigation.

1. While judges don’t like to get involved with a testator’s executor/trustee choice, our estate litigation lawyers know full well that sometimes the only way to administer an estate is to remove the estate trustee, whether it be incompetence, intransigence, or ignorance.

In Ontario, anyone with a financial interest in an estate can apply to the court to have an estate trustee removed, replaced, or not appointed at all. Under s.5 and s.37 of the Trustee Act (TA) and Rule 14.05(3)(c) of the Rules of Civil Procedure. The court is guided by Radford v. Radford Estate (2008) and St. Joseph’s Health Centre v. Dzwiekowski (2007) when making these decisions.

A request to the court is fact-specific, but the main considerations are the welfare of the beneficiaries, and whether the actions or lack thereof endanger the administration (or value) of the estate or trust.

Goal of our estate litigation lawyer: resolution, relationships

The goal of our estate litigation lawyers at Massey LLP is to build an honest relationship with our clients, while navigating complex, concurrent issues:

   “Why is there so little money left in the estate?”

   “Where did all the money go?”

   “Who authorized the spending? Where was the oversight and accountability?”

   “Did the power of attorney get improper benefit?”

   “Why is there so little money left in the estate?”

Part of our approach to resolving will disputes is to keep on top of current Canadian caselaw in estates litigation, which enables us to employ up-to-date remedies for a will challenge.

For example, estate litigation lawyers know that in DiNunzio v. DiNunzio (2022) at the Court of Appeal for Ontario highlighted the difficulty in seeking to have the costs of challenging a will paid by the estate. Many claimants challenging a will are surprised to learn ; however, there are provisions in the Estates Act for beneficiaries of a will who also challenge a will to have their legal fees paid for or reimbursed by the estate. 

Kindly note that our estate litigation lawyers do not work on continency.

The question of who gets the family cottage is frequently the trigger for estate litigation. People either do, or do not, want the family cottage, cabin, or other recreational property. Shared ownership structures, paying taxes (property taxes, capital gains taxes, land transfer taxes, probate fees), maintenance and so on for the cottage can also cause disputes. Let the estate litigation lawyers at Massey LLP, who have resolved many disputes over cottages, help settle yours.

A will dispute lawyer at Massey LLP has seen cases that involve an estate being empty or depleted. This could happen if the deceased outlived their money, but beneficiaries can believe there should be more left behind and launch a will challenge. Our estate litigation lawyers have seen instances where a person appointed power of attorney thinks the money and assets are theirs to use as they see fit. This depletes the estate and results in smaller bequests than anyone expected, which prejudices other beneficiaries.

Our estate litigation lawyers specialize in bringing applications to demand that the power of attorney account for every cent of funds they oversaw while the deceased was alive. These legal actions are called passing of accounts. If it is found that they cannot justify the use of those funds for caring for the deceased, legal steps can be taken to force them to return those funds to the estate or (if they were also a beneficiary of the deceased’s will) we can seek that those amounts be deducted from or offset against any inheritance they may be owed.

Another trigger for a will challenge is the bequests of family heirlooms. Heirlooms tend to fall into two categories: valuable objects (valuation of unique and rare objects is frequently difficult) and items with hugely sentimental value.

Our estate litigation lawyers have seen estate disputes rooted in a perceived unfair gift/inheritance being given, usually due to care given to the deceased by a family member who receives more as a result: typically it’s an attempt by the departed to “balance the ledger.” But this can anger another family member who may not place the same value on the care, or suspects there was undue influence over the testator to change the will, claiming the amount is wrongly lop-sided.

The estate litigation lawyers at Massey LLP explain that challenging a will can be a tricky process with so many potential legal and very specific procedural land mines that it’s not a matter to take on yourself. Estate litigation is a unique specialty with its own rules and procedures. With the onus on the party challenging the will to prove it’s invalid, it’s important to have a litigator specializing in the field of will challenges lead the charge. A word to the wise: estate litigation and challenging a will are not DIY projects.
The will dispute lawyers at Massey LLP are known for their strong litigation skills, negotiating abilities, and experience dealing with challenging family dynamics during a difficult time.


Five things you need to know about estate litigation

The will dispute lawyers at Massey LLP note that everyone involved in challenging a will pays their own legal fees, including any the estate incurs. It’s not inexpensive; fees of estate litigation lawyers can ratchet up to the thousands of dollars especially if the matter goes to trial. Also, Ontario has a system where the losing side in a trial or a procedural matter not only has to pay fully pay their own costs, but may also have to pay some of the legal costs of winning side. A common misconception is the assets of the estate will pay everyone’s legal costs – that is not always true! Just like other civil court matters, you typically pay your legal fees as you go – and fully challenging a will could take two to three years or more to resolve and require witnesses and specialized experts to opine on the matter.

Our estate litigation lawyers know that the clock starts ticking on estate litigation from when a notice of objection is filed for a will challenge. Under Ontario’s Limitations Act that claim must be initiated within two years per Leibel v. Leibel (2014). Missing the limitation period for challenging a will means you can’t sue. In some matters, like dependent support, the limit is six months but that can be extended by the court.

In Toronto, mediation is mandatory in an attempt to whittle down the trial list of will challenges in the Superior Court; it’s encouraged in the rest of Ontario but not mandatory, say our will dispute lawyers. During mediation both parties split the costs of a third-party impartial mediator in a neutral place with breakout rooms for each side. If successful, a mediation agreement (or minutes of settlement) will be entered into and signed by the parties, which can be enforced later on if one of the parties reneges on the agreement.

The estate litigation lawyers at Massey LLP note that gifts and bequests cannot be distributed until all the estate’s bills are paid, including taxes to the Canada Revenue Agency (CRA) and other outstanding debts to creditors. In addition, if there’s a will challenge, payments may well be frozen until the litigation is complete and the dispute is resolved. In some instances, if an independent Estate Trustee During Litigation is brought into oversee the estate, they may take over and repair any estate administration that the previous estate trustee failed to do, which can lessen the value of the estate.

Estate litigation is a niche practice area within civil litigation with very complex processes governed by specific legislation and hundreds of years of case law, so challenging (and sometimes defending) a will can be more complicated than one thinks, say our will dispute lawyers. Hiring good legal counsel is an investment that might well preserve your rights.

Our estate litigation lawyers outline the estate litigation process, steps

While the estate litigation process can vary depending on the type of action that’s filed, the will dispute lawyers at Massey LLP know there’s a basic process involved. The steps to a will challenge are:

Notice of application: When the application is filed with the court the suit is launched and is served on all the parties, say our estate litigation lawyers.

Application record: When challenging a will the applicant provides an affidavit outlining the issues, the law and evidence.

Respondent’s record: Our will dispute lawyers say this is when a defendant responds to the allegations.

Reply by applicant: The applicant may respond again on issues arising from the defendant’s response when challenging a will.

Motions: Will dispute lawyers note this is a request for an order from the judge.

Examinations: The parties are examined under oath.

Mediation: Mediation is mandatory in Toronto and encouraged elsewhere, it’s an attempt to resolve the issues, explain the estate litigation lawyers at Massey LLP.

Hearing before a judge: The final step, and the judge will decide the outcome of challenging a will.

Contact our estate litigation lawyers, will dispute lawyers

If you are planning to launch a will challenge or are an executor/trustee/administrator in need of capable defence call or email the estate litigation lawyers at Massey LLP today.