Contesting a Will or Transfer of Property

Unfortunately, even the best laid plans for property distribution after (or in some cases even before) a death can sometimes result in contentious disputes and legal action may be necessary in order to resolve estate matters.

There are often times when an estate is distributed but some beneficiaries feel that it has not been done in accordance with the Will or that they have still missed out in some way. Estate litigation is a sensitive area as contested wills can often cause deep rifts in families. With decades of experience in in this field, Daniel will aim to ensure you obtain the most efficient and amicable outcome possible for you and your loved ones.

Estate Litigation Cases

Disputes over estates seem to more common than in the past. One reason for this is likely the fact that estates have become larger for many property owners as a result of inflated real estate prices in Saskatchewan and elsewhere.

In most cases people don’t engage in complex estate planning before they die. For many, the only estate planning they engage in is to perhaps execute a will and possibly make substantial gifts while still alive. In addition, some take steps to hold certain assets (such as land, a condo or a bank account) in joint tenancy.

If you feel that you have been treated unfairly as a result of a will or the passing of property outside of the will, the laws of Canada and Saskatchewan provide a number of possible grounds to challenge a will or transfer/divide a property after death.

Examples of Estate Litigation

• A second wife who argued that she had unfairly been left out of her husband’s will, which left all assets to his children from his two marriages. The man’s children from his first marriage argued that the plaintiff had rightfully been left out the will because the man had transferred significant assets to her prior to his death. The court ruled that the woman should receive a quarter of the estate, in part to cover debts owed to the estate.

• The variance of a will that a judge ruled unfairly left an entire estate to one adult child and left out two other adult children. The two plaintiffs in the case argued successfully that they had received little financial support from their mother during her lifetime but that the brother who was to receive the entire estate already had received significant support.

Resulting Trusts

Another important area of estate litigation involves assets that were transferred before the will-maker died. The common law of Canada provides that if a gratuitous transfer of property occurs between a parent and an adult child, there is a presumption that the child holds the property transferred to them in trust for the parent. This law applies to transfers of property (for example, land, a vehicle or money) and to transfers of a part interest in property such as adding a child as a joint tenant of a piece of land or to a joint bank account.

Where the presumption of resulting trust applies, the child who received the property has the burden of proving that the transfer was a gift. Sometimes the child does not dispute that the property was not a gift and should be part of the parent’s estate.  Other times, it will be clear the transfer was a gift because the parent wrote “gift” on the cheque or executed a declaration of gift in respect of land.

In other cases, the intentions of the person transferring the property may be unclear with the result that successors may seek to litigate that issue. Those situations require a close examination of the circumstances of the transfer and anything that was said or written about the transfer at the time.