Challenging a Will in Ontario
Charles B. Wagner
Challenge a Last Will Cautiously with the Guidance of Ontario Lawyers
are aware that there are many different steps in challenging a last will. These steps can be quite frustrating, especially when you are mourning. So, estate lawyers
make sure that while you are grieving, you also get what estates you are entitled to. Initially, these steps in challenging a last will are not so costly. However, if done improperly challenging a last will may cost a lot of money and more grief.
A loss of money and an increase in grief may be caused by having to back-track the request to challenge the last will and testament. This may be due to errors, such as filling forms out improperly. Be cautious of such errors by using an Ontario lawyer to help you. Ontario lawyers also ensure that the process of challenging the last will is done as quickly as possible, so you can receive your estate without any delay.
Ontario Lawyers Help you Get your Memories and Entitled Estate Back As Soon As Possible
This process should be done as fast as possible because the current estate trustee may think that the last will is probated or they may be untrustworthy with the assets. When a will is probated, it is considered to be a valid last will and not challenged. As a result, the estate trustee may use up all the assets before you receive custody of them, leaving nothing behind. Consequently if you do not act quickly enough then you may be left with a lack of tangible memories of your departed loved one. To avoid this, an Ontario lawyer shows you how you can freeze these estate assets and save your memories.
An Ontario lawyer will help you challenge a last will and testament. As Charles Wagner’s article
states, challenging a last will may be a long procedure and somewhat confusing. However, by using an estate lawyer, clarity and a new probate may be obtained. Canadian-Lawyers.ca
is a FREE online lawyer directory and referral service
that helps you find the most qualified Ontario lawyer to challenge a will.
The first step to challenging a will in Ontario depends on whether probate been granted.
Any person can go to the local court registrar and do a search to see if the court has granted a certificate of appointment which established the validity of the will (probate).
If probate has not been granted then the person objecting to the will can file a form called a “Notice of Objection” with the court registrar. If probate has been granted then the person objecting to the will has to bring a motion for the return of the certificate of appointment.
Why is filing a Notice of Objection so important?
Once filed, the court registrar will not issue a certificate of appointment (probate) without notice to the Objector. Probate tells the world that the will is valid and the executor is in charge of the assets. There is a risk that when granted probate, the executor can sell the assets or remove out of the jurisdiction and thereby make collection difficult.
It is important to remember that the granting of probate tells the world that the will in question is the last will and testament of the deceased and a valid document. It tells the world that the executor is in charge of the assets of the deceased. There is a risk that a dishonest or uninformed estate trustee, when granted probate, can sell the assets of the estate to an innocent third party or even taken them out of the jurisdiction. This means that even if the will challenge is successful collecting on that judgment may be frustrated because the assets are already gone and possibly untraceable.
Once the Notice of Objection is filed and in effect the Court Registrar will not issue a certificate of appointment (probate). Even if the probate application is made in Toronto the person challenging the will can file his/her objection with their local court registrar because Ontario’s court system is linked. But be careful – it is not instantaneous. I have seen certificate of appointments being issued in one city after the filing of notices of objection in another city because they were not inputted into the system yet and the registrar did not know there was any objection. The best practice is to file the notice of objection with the court registrar where the application for probate has been started.
It’s important to remember that filing a Notice of Objection is only one important step in the litigation. The real first step for anyone challenging a will is to seek the advice of a lawyer familiar with the process. That lawyer can review the file and advise you if there is a worthwhile challenge to the will. Furthermore, filing a Notice of Objection is a relatively simple inexpensive step. But, if it is not done properly and as a result the court registrar issues a certificate of appointment, then a more costly process (a motion for the return of the certificate of appointment) will have to be taken.
It is also very important to know that estate assets may be at risk even if the person challenging the will files a notice of objection. Remember, the power of the estate trustee/executor to deal with estate assets comes from the will itself – not the certificate of appointment. It’s just that there are certain institutions like banks and insurance companies who need to be certain that the documents being shown to them is really the last will and testament of the deceased. There are assets, like the shares in private corporations and real estate (under certain circumstances) that can be transferred without the estate trustee getting probate. An experienced lawyer can guide you in how to go to court, freeze the other assets and challenge the will.
Some resources that may be helpful:
Rules 74.12(1) (b) and 75.03 – Objection to Issuing Certificate of Appointment
Notice of Objection Form 75.1
ABOUT THE AUTHOR: Charles B. Wagner
Charles B. Wagner is an experienced Toronto estate and commercial litigator. His legal practice focuses on disputes related to Will Challenges, Capacity Litigation, Executor Removal, Support Claims and other related estate litigation.
A great way to start your search for a local Canadian Wills lawyer is at Canadian-Lawyers.ca. Go to the 'Find a Lawyer' search box that appears on the right hand side of this screen to start your lawyer search. Type in wills and estates or the name of the law firm, the city and the province that you are looking to hire a lawyer from, and click on the 'Search Now' button. This will generate a list of local Canadian estate lawyers.