It's always a good idea for an estate trustee to retain a lawyer. Estates and trust litigation is a complex area of law, and making mistakes can mean personal liability. Below are three common scenarios where seeking legal advise is particularly important:
1. The Will is unclear or there are questions about its validity
If you are named in a Will, either as a beneficiary or as an executor or estate trustee, you need to be aware of your rights and responsibilities. Estates lawyers can assist with the interpretation of any contradictory or ambiguous terms in the will that may be unfamiliar to the average person.
2. The validity of the will is questionable
If you suspect that there are issues with any of the formal validity requirements for making a Will (e.g., the deceased had an advanced illness, a severe disability, or the deceased was under the influence of another individual and the will may not reflect the deceased’s known wishes) then it's wise to consult an estates lawyer. The Will may need to be set aside or invalidated.
3. There are dependent support claims
Testators have a positive responsibility to provide support to any and all dependents that rely on them. Dependents can include a spouse (including common law and ex spouses), a parent, a child (including adult children), a grandchild, or a sibling.
Part 5 of the Succession Law Reform Act covers matters related to Dependent Support Claims (the “Claim”). The Claim must be filed within 6 months after a Certificate of Appointment of Estate Trustee is issued. A court will decide if the relief is warranted based on the particular circumstances and situation of the Dependent.
If you're an estate trustee who has been served a Claim against the estate, or if you're a dependent who has been left out of a will, it's important to speak to an estates lawyer to navigate your rights and responsibilities as well as minimize any legal risks the estate may be open to.
4. There's an application to pass accounts
Estate trustees, attorneys for property, and executors have a duty to maintain the estate and its assets as well as keep accurate records of such maintenance. At any time, a beneficiary of an estate can request a “passing of accounts”. The passing of accounts is a very technical process governed by legislation and case law.
The application to pass accounts must be served on all individuals with an interest in the estate. It is up to those individuals to file any objections they may have in the way the estate is administered. The court, among other things, can review the accounts and may temporarily suspend or fully terminate a power of attorney or guardianship, or make an order that money taken by a trustee or attorney be repaid within a stipulated time period.
All of these potential consequences can have a serious impact on the estate and expose the estate to unintended legal risk. It is imperative that an estates lawyer be consulted in these circumstances.