Avoid Costly Mistakes Contesting Wills in Ontario

Are you losing sleep because you lost an inheritance? You may be upset because you were cut out of the will. Rushing off to the court may not be best thing to do. I’ll explain three costly mistakes you don’t want to make.

Will disputes are complex, costly and legendary. You need to invest in legal advice from an estate dispute expert. Start by getting an opinion about the merits of your claim.

Here are the three mistakes I see people making when they do not get the right advice.

1. All my legal fees will be paid by the estate

It is a mistake to believe this statement is true. If this were true, you would hire the most expensive lawyer. People would never stop fighting out of principle.

There are no free rides to the courthouse. Our courts use a modern approach to award legal costs.

Most winners will receive only partial repayment of their legal costs.

There are a few exceptions:

• It is different if estate trustees must hire lawyers. They have a duty to defend the will.
• What if the person making the will created the problem? Then reasonable legal costs may be paid out of the estate assets.
•  The trial judge decides who pays legal fees. Judges are seldom sympathetic to those wasting the court’s time.

You should not expect to be fully reimbursed for all legal costs.

In Ontario, the general rule is the loser must pay the winner’s legal costs. Legal costs must also be proportionate to the amounts involved.

You cannot spend $10,000 fighting over who gets Grandma’s pearls.

You could be involved in an estate lawsuit for 2 to 3 years. Your fees could add up to $25,000-$45,000 for your own lawyer.

If you lose, you may pay the winning side a good portion of their legal fees. On top of that, you won’t get any of your own legal fees. That is a double whammy.

2. Any courtroom lawyer can contest a will

Any good courtroom lawyer is ready for a challenge. They may be the best in their field. But ask them what they know about estate law and procedure.

Every province has different estate rules to contest wills. Ontario recognizes handwritten holographic wills.

Do you live in British Columbia and need to contest an Ontario will? You’ll need an Ontario estate lawyer to advise you.

You do not want to change lawyers. Start with an opinion from an estate lawyer about your chances.

3. I can do it myself without a lawyer

You can object to a will without a lawyer. You need to have a financial interest in the estate. Ontario’s Rules of Civil Procedure sets the terminology and procedures for contentious will proceedings.

The paperwork process is complicated. However, you may want to stay away from Pandora’s Box.

You may be able to file an objection if the will has not been probated. In Ontario, that means a certificate of appointment of estate trustee with or without a will was not issued to the estate trustees.

You can file a notice of objection with the estate court registrar. You’ll follow the court procedures.

But you will end up in court fighting over a will.

Wills, remember, are legal documents. Judges must interpret and rule on their validity.

Sooner or later you will need a lawyer to help.

You need to understand your chances, the law and the evidence you need to win.

This certainly is not legal advice.

Want more information?

Read my free MrWills guide How to contest a will.