Estate planning might sound daunting, but it's crucial for ensuring that your wishes are respected and your assets are distributed smoothly. Whether you're drafting your first will or helping aging parents, having a clear plan can save a lot of stress later. Estate planning is all about organizing your finances and creating legal documents like wills and trusts.
But what happens if there are disputes? That's where estate litigators come in. They handle disagreements over wills, beneficiary disputes, and claims of undue influence. Understanding both estate planning and litigation can help you manage your wealth and protect your legacy.
Estate litigators do more than just resolve disputes after someone has passed away. They also help with pre-emptive planning to ensure everything is in order before it's needed. Here are some common services estate litigators offer:
1. Probate and estate administration
Probate is the legal process of validating a will and authorizing the executor to distribute the deceased's assets. Each province in Canada has its own probate rules, so it's important to know what applies to you.
- Responsibilities of a personal representative: In Alberta, for example, once probate is granted, the personal representative has specific duties under the Estate Administration Act. These include managing the estate, identifying assets and liabilities, settling debts, and distributing property to beneficiaries.
- Modernized Probate System: Alberta has streamlined its digital probate system, making the process easier for both litigators and their clients.
2. Validity of the will
For a will to be valid, it must meet strict legal requirements under the Wills & Succession Act. If a will does not comply, it can be declared invalid during probate.
- Witness requirements: A will must be witnessed by at least two people who aren't beneficiaries. This helps ensure its authenticity.
- Holograph wills: Handwritten wills can be valid, but they must be entirely in the testator's handwriting and signed by them.
- Actions that invalidate a will: Certain actions, like getting married, making a new will, or destroying the will, can invalidate it.
3. Capacity issues of the testator
A valid will requires the testator (the person making the will) to have testamentary capacity. This means they understand what they're doing, know the impact on their property, and are mentally capable of making these decisions.
- Testamentary capacity: The testator must be of sound mind when signing the will. This includes understanding the act of making a will, knowing the extent of their property, appreciating the claims of beneficiaries, and having a clear mind to make the will.
- Challenging capacity: Family members or beneficiaries might challenge a will if they believe the testator lacked capacity. This often involves court cases and witnesses to attest to the testator's mental state at the time of signing.
4. Undue influence issues of the testator
If someone exerts undue influence on the testator, making the will reflect their wishes instead of the testator's, the will can be challenged and potentially set aside.
- Proving undue influence: It requires evidence of coercion or manipulation. Courts consider factors like who influenced the testator, any suspicious circumstances, and who benefits from the will.
- Mitigating risks: Estate litigators can help document that the will reflects the testator's true wishes, reducing the chance of successful undue influence claims.
Conclusion
Estate planning is about ensuring your assets are passed on smoothly and according to your wishes. Creating wills and trusts is part of this, but sometimes disputes arise. Estate litigators handle these disputes and can also help with planning to prevent issues. They assist with validating wills, ensuring testamentary capacity, and protecting against undue influence. If you face any estate issues, consulting with an experienced estate litigator can provide peace of mind and safeguard your legacy.
Originally published by Digital Journal
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.