A will challenge is a proceeding to determine whether a document is the valid last will and testament of the testator. Will challenges are complex proceedings with distinct rules of evidence that have evolved over centuries.

Ontario law requires that testators make adequate provision for the support of their dependants, including their spouses, children, parents, even brothers and sisters. A person who qualifies as a dependant may commence an application for dependant support from the testator’s estate. A dependant can also request “interim” support, which is support from the estate during the lawsuit, to meet life’s necessities.

A typical dependant support claimant is a wife, common-law spouse or child to whom the deceased did not leave enough to make ends meet.

Where a person is no longer capable of making decisions about managing property or personal care, and needs someone to make decisions on his or her behalf, a family member or other interested person can bring an application to become a court-appointed guardian of the incapable person’s property or person.

Guardians have similar duties, powers and rights as attorneys for property or personal care. Guardians have a duty to make decisions that are in the best interests of the incapable person. Guardians may also be entitled to compensation. Guardians can be removed, and guardians of property can be compelled to pass their accounts in the same manner as a trustee.

Any fiduciary acting in a representative capacity can be removed by the Court and replaced with someone else. This includes estate trustees, attorneys for property or personal care, guardians, and so on. Removals can be voluntary or contested. Many persons have standing to bring a removal application, but most often a removal is a contest between the trustee and a beneficiary of an estate or trust..

A beneficiary of an estate can also apply to Court for an Order “passing over” the person named estate trustee in the Will. This is similar to removal but happens before the named estate trustee receives a Certificate of Appointment of Estate Trustee with a Will.

A power of attorney is a grant of decision-making authority from the grantor to another person that is made while the grantor has capacity.

Any family member or other interested person may be allowed to bring an application to challenge the validity of a purported Power of Attorney who is not acting in the best interests of the incapable grantor.

A trustee, guardian or personal representative is often entitled to receive compensation. Executors, estate trustees, trustees, property attorneys and property guardians, and in some cases, personal care attorneys and personal care guardians, may all be so entitled. The amount of compensation is ultimately at the discretion of the Court. Any beneficiary of a trust or estate can object to the amount of compensation claimed. If minors or incapable persons may be affected, Ontario’s Children’s Lawyer or Public Guardian and Trustee may become involved.

A trust can be varied if all beneficiaries consent. The applicant, who can be any beneficiary or the trustee, must convince a court that variation is in the best interests of all beneficiaries, and that all capable adult beneficiaries consent.

Trustees, executors, property attorneys and guardians have a duty to keep accurate accounts for their administration. In a passing of accounts, a court reviews the accounts of a trustee, executor, property attorney or guardian. The accounts should reflect every transaction involving the assets under administration.

Any beneficiary or other financially-interested person may be allowed to compel a trustee, executor or attorney/guardian to pass his or her accounts. In some situations, the Ontario Ministry of the Attorney General, in the guise of the Children’s Lawyer or the Public Guardian and Trustee, may insist on a passing of accounts. These offices can challenge accounts by objecting, and then seeking orders against the trustee, executor, property attorney or guardian.

Any act or omission in violation of the fiduciary duties and obligations of a trustee may be so serious as to be a breach of trust. Trustees and other personal representatives may be held personally liable for damages caused by a breach of trust.

For instance, a trustee who fails to insure an estate’s house, which then burns down, or fails to prudently invest estate assets, which then lose value, can be held personally liable to repay beneficiaries for the loss.

Mediation is a non-confrontational process in which all parties to a legal dispute meet for a confidential “without prejudice” session with a neutral mediator. The mediator is a neutral third party – typically an experienced lawyer in the field – who facilitates attempts to negotiate a settlement. The confidential, without prejudice, nature of the process encourages parties to put their most realistic positions forward and “lay all their cards on the table”. Mediation is mandatory for most estates litigation matters commenced in Toronto. Sean Graham acts as a mediator in estate, trust and guardianship matters.