If the death of a loved one isn’t enough to deal with already, many people face the hardship of a messy estate dispute. Some of the common situations that arise during disputes are lack of testamentary capacity, undue influence and intestacy.
Testamentary capacity refers to the will maker’s legal capacity to recognize what the will stipulates (what they’re signing). Meaning, that if, let’s say your grandfather signed a will during a bout with dementia, he may not know what he’s actually signing and the will would be invalid. Medical records and other evidences help validate these claims.
Undue influence is another unfortunate occurrence. In these cases a party manipulates the will maker into creating a will that favors the influencing party and isn’t in the will maker’s (or their family’s) best interest.
Duhaime.org cites Canadian author S. Waddams who poses two instances where undue influence occurs.
“The first is when the relationship between the contracting parties falls into an established category; a parent taking advantage of a child, a trustee of a beneficiary, a solicitor of a client, a priest of a penitent, a doctor of a patient. In these cases undue influence is said to be ‘presumed’ and a transaction - a gift or contract - will be set aside at the instance of the weaker party, unless the presumption is rebutted.
“In the second kind of case none of these special relationships exists, but it is still open to the weaker party to prove that the relationship between the parties was such that the stronger was enabled to take unfair advantage. This may be shown in either of two quite different ways: by actual pressure relating to the particular transaction, as in a case where the stronger party threatened to prosecute the weaker’s son, or by a general relationship of a trust between the parties of which the stronger party took advantage. It is plain that the undue influence umbrella covers two quite separate concerns, the first akin to duress - abuse of adversary power, the second akin to fiduciary duty - the abuse of trust.”
There is also the case of intestacy. There is a common misconception that the assets of intestates, people who die without a will (or a valid will), go to the government when in fact the living next-of-kin relatives receive these assets (in the case where no immediate relatives or next-of-kin can be found, the estate becomes the property of the Crown under the Escheats Act.)
Under the Succession Law Reform Act, dependants of either intestates or testates have a claim on the estate whether or not they are mentioned in the will. The act defines dependant as:
* the spouse of the deceased,
* a parent of the deceased,
* a child of the deceased, or
* a brother or sister of the deceased
For those dependants of the deceased that feel they were not properly provided for in the will, their lawyer will file an application with the appropriate agency for a hearing. At the hearing, the judge will determine what support is necessary and possibly suspend the administration of the estate until it is resolved.
Dependants or other beneficiaries who feel they’ve been disinherited should act immediately. Estate law can be time sensitive. If there are issues with the estate, you should contact a lawyer for a consultation and work to get the problems resolved as soon as possible.
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