Estate Disputes a.k.a. So You Wanna Fight
Prepared For: Legal Education Society of Alberta
Wills & Estates: Beyond the Basics
Prepared By:
Doris C. E. Bonora
Reynolds Mirth Richards & Farmer LLP
Edmonton, Alberta
For Presentation In:
Edmonton – February 17, 2010
Calgary – February 24, 2010
ESTATE DISPUTES
a.k.a
SO YOU WANNA FIGHT
In any estate there is a possibility for all kinds of litigation that results from:
•
Disputes among beneficiaries
•
Disputes with the executor
•
Claims by Dependent beneficiaries
•
Litigation involving the death of the deceased (negligence or wrongful death claims)
•
Disputes about the accounting of the executor
•
Disputes over the executor’s fee
•
Disputes over the interpretation of the will
•
Disputes over the assets and whether they belonged to the deceased or whether they transfer
outside the estate
•
Disputes about Compensation for lawyers, executors and costs
Clearly there is a lot of work for lawyers in estates and lots of interesting issues to sort out and solve.
Estate disputes involve lots of negotiation and trying to sort out how a resolution can be reached
perhaps without the need for litigation. However, in many cases it will be necessary to involve the
courts. Below we will examine various types of litigation which can occur and provide the basis for
dealing with the actions.
A.
ADVICE AND DIRECTION
The best part of estate litigation is the ability to go to court for advice and direction.
Any time that you have a problem, you can go to court and seek direction from the court.
You do not actually go and ask the court for advice. They won’t give it to you. You will go to
court to seek direction by suggesting a solution to the court. Literally anything can be sorted
out this way. For example:
2
•
If there is an executor who is not moving very fast to get the administration of the
estate complete… get the court to set some timelines for him to move ahead
•
If there are beneficiaries who are fighting about how to distribute jewellery…go to
court and have the court set the method for how personal assets will be distributed
•
If there is an issue about how to interpret part of a will…go to court and have the
court determine the interpretation
•
If there is a need for direction on how to sell an asset or how to manage assets (such
as a farm or business)…you can go to court to get direction
•
Maybe there is a missing beneficiary or you don’t quite know who all the
beneficiaries are…advice and direction is the answer
Often the reason you will go to court is because you cannot move ahead due to a dispute.
However, sometimes you will go to court because there is a risk for the executor in taking
certain steps and by getting court direction you can insulate the executor from personal liability
in the future. You must however be careful about this as when the answer simply involves
a judgement that should be made by the executor (such as how to invest funds) or where the
answer was very obvious (such as who the beneficiaries were), the court did not intervene and
in one case where it was too obvious, the court did not award costs to the executrix.
It is always best to try and negotiate a solution. Try and get everyone to come to a settlement.
Going to court is not a good way to sort out family problems but in some cases there is no
other way to complete the administration. When you realize that you are not going to get
agreement do not hesitate to set the matter down in court. You will find that filing a notice
of motion it will force the other lawyers to offer solutions or to come to court with solutions.
How do you get to court:
You will bring on a Notice of Motion and Affidavit using C1 and C2 of the Surrogate
forms. You will then use the following law:
•
Section 60 of the Administration of Estate Act and
•
Rule 4 of the Surrogate Rules and/or
•
Section 43 of the Trustee Act (this can also be used to deal with estate matters where
the executor is acting as a trustee, which is often the case).
3