Estate Litigation

When dealing with a loved one’s estate in Ontario you may find yourself needing legal assistance — but do you need help with estate administration or estate litigation? While both fall under estates law they serve fundamentally different purposes.

Estate Administration

Estate administration is the standard orderly process of settling a deceased person’s affairs when there are no disputes or conflicts. It ensures the deceased’s assets are properly collected and valued, outstanding debts and taxes are paid, and the remaining estate is distributed to the rightful beneficiaries. If everyone agrees on the will’s validity and beneficiaries generally agree on the distribution — you likely need estate administration services.

Estate Litigation

Estate litigation involves resolving disputes and conflicts related to an estate through legal proceedings. It steps in when cooperation breaks down and legal intervention is required — such as when a will’s validity is questioned, there are disputes about who should serve as executor, an executor is not fulfilling their duties, or someone believes they are entitled to support from the estate.

Contact Hummingbird Lawyers to determine which service best fits your situation.

Estate law can be a complicated and emotional area of law. When a loved one passes and disputes arise over estate matters, it is important to get legal advice from an experienced estate lawyer. At Hummingbird Lawyers we have a qualified wills and estates team as well as a family law department for when estate and trust matters overlap.

How Does the Estate Litigation Process Work?

Step 1 — Notice of Application
A notice of application is filed with the Superior Court of Justice and served on all parties.

Step 2 — Application Record
The applicant prepares their affidavit and evidence, outlining the issues and relevant law.

Step 3 — Respondent’s Record
The respondent has the opportunity to respond to the applicant’s documents.

Step 4 — Reply by Applicant
The applicant may respond to any allegations made by the respondent and provide additional evidence. A reply is not always necessary — your lawyer will advise on the best course of action.

Step 5 — Possible Motions
Motions can be made at any point in the process to request a judge make an order.

Step 6 — Examinations
Parties who provided affidavits are questioned under oath by the opposing side.

Step 7 — Mediation
A mandatory step where both parties agree on and split the cost of an impartial third-party mediator to attempt resolution before proceeding to a hearing.

Step 8 — Hearing with a Judge
If mediation does not resolve the dispute the matter proceeds to a hearing before a judge for a final decision.

Contact Hummingbird Lawyers if you are involved in an estate dispute and need experienced legal guidance.

A dependant’s relief claim under Part V of the Succession Law Reform Act (SLRA) is one legislative limitation on testamentary autonomy. The SLRA imposes an obligation that requires a testator to provide adequate provision for their dependants. If a dependant successfully proves that the testator did not leave them with adequate provision, the Court may order such provision that it considers adequate out of the assets of the estate.

Who is a Dependant?

A dependant under the SLRA includes the spouse, parent, child, or sibling of the deceased — to whom the deceased was providing support or was under a legal obligation to provide support immediately before death. A spouse includes two persons who have cohabited continuously for a period of not less than three years, or in a relationship of some permanence if they are the parents of a child. Adult children are also considered dependants for the purposes of this section.

What Constitutes Support Immediately Before Death?

Providing support means more than sporadic gifts. Establishing dependency requires ongoing, systematic provision of money or money’s kind — including food, shelter, or the funding of expenses — to support or sustain a recipient where the recipient is otherwise unable to fully support themselves.

How Much is a Dependant Awarded?

The Court considers many factors including the dependant’s current means and assets, their age, and their capacity to contribute to their own support. The Court must also consider the moral obligations that arise between the deceased and the dependant as a result of society’s expectations of what a judicious person would do in the circumstances.

Contact Hummingbird Lawyers if you believe you have a dependant support claim or need guidance on your obligations as an estate trustee.

My Spouse Has a Will But I Am Not Named as a Beneficiary

If you were unmarried or in a common-law relationship you may be entitled to dependant support based on the deceased providing you with financial or moral support prior to their death. This claim should be initiated within six months from the grant of a Certificate of Appointment of Estate Trustee.

If you were a legally married spouse you have the right to elect to either take entitlement under the Will or receive an equalization payment pursuant to the Family Law Act. If you have been separated for at least three years before death or executed a Separation Agreement you are treated as if you were divorced and will not be entitled to any benefits under the deceased’s Will even if you were named as a beneficiary.

Equalization of Net Family Property

You may elect to receive equalization of net family property pursuant to the Family Law Act within six months from the date of death. The formula is designed to calculate the growth of each spouse’s net worth from the date of marriage to the date of separation and equalize the difference. The spouse with the greater net family property pays the spouse with the lesser net family property an amount equal to one-half the difference between their respective net family properties.

All property is included in the calculation regardless of its nature — including the house, car, joint bank accounts, business assets, interests in trusts, pensions, and RRSPs. Both the surviving spouse and the estate must each complete a Financial Statement with all figures supported by statements.

My Spouse Does Not Have a Will — Am I Entitled to Anything?

If your spouse died without a Will your entitlement depends on your relationship. Contact Hummingbird Lawyers to understand your rights and options as a surviving spouse.

What If My Parents Cut Me Out of Their Will?

There is a policy in favour of honouring the wishes of a testator. The principle of testamentary freedom safeguards a testator’s right to dispose of their property and choose the beneficiaries they so desire. An unequal division of property even among children is not considered suspect on its own.

That said a Will may be challenged on the following bases:

• Absence of testamentary capacity or cognitive ability
• Absence of approval or knowledge of the terms of the Will
• Undue influence or coercion
• Forgery or fraud
• Non-compliance with the legislative requirements for executing a Will

These grounds are collectively known as the principle of suspicious circumstances.

When challenged the propounder of the Will must prove that the testator possessed capacity and knew and approved of its contents. The drafting solicitor’s file and the testator’s medical records will be relevant. Once satisfied the testator was of competent mind and had their Will read over to them the circumstances point to a strong presumption that the Will has been duly and properly executed.

When a Will is challenged based on undue influence or fraud it is the attacker of the Will who bears the burden of proving it. If unsuccessful the attacker would be subject to costs — meaning they would have to pay the legal fees of the propounder in addition to their own.

What If I Still Feel I Am Being Treated Unfairly Under the Will?

Even where a Will is valid you may still have options. At Hummingbird Lawyers we can help you determine the strength of your Will challenge and guide you through the court process.

Contact Hummingbird Lawyers to discuss your situation and understand your rights as a child of the deceased.

A Passing of Accounts is a formal court process which audits the handling of an estate. The executor provides detailed documentation outlining the estate assets and debts in addition to estate receipts, bank statements, cheques, deposits, professional expenditures, asset distribution, reimbursement, and any other estate debits or credits.

Two Ways a Passing of Accounts Occurs

The executor will either file a Notice of Application to Pass Accounts by their own volition or in response to a court order. A beneficiary who desires to initiate a passing of accounts must apply to the court for an order compelling the executor to pass their accounts.

Step 1 — Application to Pass Accounts
The executor files the Application to Pass Accounts along with supporting documentation including a Notice of Application, estate accounts and financial documents, an affidavit sworn by the executor, a copy of the Certificate of Appointment of Estate Trustee, and a draft order. The executor must then serve the documents on each individual who has an interest in the estate 60 to 75 days before the proposed hearing date.

Step 2 — Response to the Application
After beneficiaries are served they have the opportunity to challenge any item on the accounts. Common reasons for a contested passing of accounts include disagreements over executor compensation, estate expenses or income, the sale or value of estate assets, or the timing of distribution. A beneficiary wishing to contest must file a Notice of Objection to Accounts at least 35 days before the scheduled hearing date.

Step 3 — Executor Replies to Objections
The executor prepares a Reply to Notices of Objection combining the remaining objections and serves these documents on all individuals entitled to notice.

Step 4 — Beneficiary Can Reply to the Executor’s Reply
Beneficiaries may submit a further reply to the executor’s response within 5 days before the hearing date.

Contact Hummingbird Lawyers if you are an executor needing to pass accounts or a beneficiary with concerns about how an estate is being handled.

An estate trustee or executor can be named in a Will or appointed by the Court. There are times when a person may seek to remove an estate trustee where there are disagreements over how an estate should be administered. The Courts are generally reluctant to remove an estate trustee, preferring to respect the deceased’s right to choose their estate trustees in their last Will. The Court will typically only remove an estate trustee in limited circumstances.

Process of Removing an Estate Trustee

An Application to remove an estate trustee must be brought under the Trustee Act and the Rules of Civil Procedure. Any person appearing to have a financial interest in an estate may bring an application to revoke a certificate of appointment of estate trustee. The court may revoke the certificate where it was issued in error or as a result of fraud, the appointment is no longer effective, or the certificate should be revoked for any other reason.

Grounds for Removal

The question of removal comes down to whether the future of the estate is likely to be compromised if the court does not order the removal of the acting estate trustee. The principles the Court considers include:

• The court should not interfere lightly with the testator’s choice of estate trustee
• Such interference must be not only well justified but must amount to a case of clear necessity
• Removal should only occur on the clearest of evidence that there is no other course to follow
• The court’s main guide is the welfare of the beneficiaries
• It must be shown that non-removal will likely prevent the trust from being properly executed — acts or omissions must endanger the trust property or show a want of honesty, capacity, or reasonable fidelity
• Removal is not intended to punish past misconduct but to protect the assets of the trust and the interests of the beneficiaries
• Friction alone is not itself a reason for removal — it must be of such a nature or degree that it prevents or is likely to prevent the proper administration of the trust

Contact Hummingbird Lawyers if you have concerns about how an estate trustee is administering an estate.

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Elder Law is the legal practice area focused on the aging population. It encompasses a wide area of law including estate planning, mental capacity, long-term care, elder abuse, fraud, predatory marriages, isolation, and many other aspects vulnerable people face. The term “Elder Abuse” can be physical, emotional or financial. It comes in many forms and is increasing at alarming rates. According to research gathered through the Department of Justice Canada (2023) “About 45 percent of seniors report experiencing some form of abuse from the age of 65 on.”

Hummingbird Lawyers is a huge advocate for protecting vulnerable clients and has been involved with fighting for change both Nationally and Provincially. We are pleased to provide consultations to older adults or their families, in Elder Law.

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