Other Estate Disputes

In addition to challenges to wills, the lawyers at McLellan Herbert Locke also specialize in a variety of other disputes involving estates, trusts, and succession. These include, but are not limited to:

• Resulting trust claims: When a parent transfers an asset or otherwise adds their adult child as a joint owner to property, without receiving anything in return, the law presumes that it was not a gift and the adult child is holding that asset in trust for the parent (and for the parent’s estate following the parent’s death). This is called a resulting trust and is often claimed when a parent dies, leaving a property that passes outside of their estate to one of their children by the right of survivorship. Even if the parent leaves a will that divides their estate equally amongst their children, the distribution may not be fair if a significant asset has passed to one child outside of the estate.
• Removing an executor or trustee: A will-maker or a settlor of a trust will typically select an executor or trustee whom they believe will act honestly and manage their estate or trust prudently. However, this does not always work out. Where an executor or trustee has acted dishonestly, has mismanaged the estate, is in a conflict of interest, or has otherwise breached their duties, a claim may be made to remove that executor or trustee.
• Passing of accounts: Executors and trustees are required to account to the beneficiaries of the estate or trust that they are managing. When a dispute arises as to the executor or trustee’s accounting, a beneficiary may request a passing of accounts before the court.
• Spousal status disputes: When a person dies leaving a spouse, that spouse has certain rights with respect to the deceased’s estate. Whether or not someone meets the definition of a “spouse” for the purpose of estate law, is constantly evolving with today’s social climate and the latest court decisions. In most cases, there will be no dispute as to the spousal status of the claimant; however, in a growing number of cases, the alleged spouse is arguably a roommate or just a boyfriend/girlfriend, and in some cases, even a financial predator. In any event, the question for the court to determine is whether the parties were, in fact, spouses living in a “marriage-like relationship” or in other cases, whether an existing spousal relationship ended before the deceased passed away.
• Unjust enrichment: This claim typically involves a person providing services to another person without being adequately compensated. The person receiving the services would have received a substantial benefit, and the person providing the services would be entitled to compensation. In many cases, this involves an adult child providing labour and other contributions to a parent (based on a lifetime of promises of compensation), and the parent ultimately failing to compensate the child adequately.
• Claims against fiduciaries: Executors and trustees owe a fiduciary duty to the beneficiaries of the estate or trust. In addition to removing an executor or trustee, a beneficiary may also claim against the executor or trustee for a breach of fiduciary duty when the executor or trustee has caused financial damage to the estate or trust. If a breach of fiduciary claim is proven, the beneficiary would be entitled to financial compensation from the executor or trustee personally.
• Lack of capacity / Undue influence: Where a person enters into a transaction without being fully aware of the nature and consequences of what they are doing, or where they are pressured or manipulated to do it, or both, a disappointed beneficiary may make a claim to set aside the transaction based on the person lacking the requisite mental capacity or having been unduly influenced to enter into the transaction.