The death of someone in the family can, unfortunately, lead to disputes among surviving family members. The disputes are usually the result of a family member being unhappy with the portion of the estate left to him or her by the person who has died (the testator). If the person is unhappy enough, a lawsuit may result.
Estate litigation refers to a lawsuit involving a deceased person’s estate. Unless the lawsuit is settled by the persons involved in the dispute, the court will decide to whom the deceased person’s estate will go.
A person’s estate refers to the totality of the property that a person owns at death. The term property refers to everything the person owns, not just real estate. However, some property may not become part of the deceased person’s estate. Two people who, together, own property may be tenants in common or they may be joint tenants. If they are tenants in common, when one of them dies, his or her share of the property becomes part of his or her estate. If they are joint tenants, when one person dies, his or her share of the property goes to the person with whom the deceased person jointly owned the property and does not become part of the deceased person’s estate, or is not affected by the deceaseed person’s will or the law with respect to intestacies if there is no will.
What happens to a person’s estate when he or she dies? It depends on whether or not the person has a will. If the deceased person has a will, his or her property goes to whomever the will directs. This is assuming that the will is valid.
If the deceased person does not have a valid will, the deceased person is said to be intestate (without a will) and it is said that there is an intestacy.
In the case of intestacy, if the deceased person has a spouse, but no children, all of the deceased person’s estate goes to the spouse. If the deceased person had a spouse and one child, the spouse receives the first $200,000 from the estate and half of the remainder of the estate. The child receives the balance of the estate. If the deceased person had a spouse and two or more children, the spouse receives the first $200,000 from the estate and one-third of the remainder of the estate. The children then share the balance of the estate equally. If the deceased person has children but no spouse, the children divide the estate equally.
If there is a will, but it is invalid, then it is of no effect and there is intestacy. A will may be invalid for several reasons. Some of these reasons are as follows:
- The will may be forged;
- The will may be improperly signed or witnessed;
- The person who signed the will may not have been mentally competent when he or she signed the will;
- The will may be the result of undue influence; or
- The will may not accurately represent the intention of the testator.
To be mentally competent to sign a will, a person must:
- Understand what a will is and what its effect is;
- Know what he or she owns;
- Know whom he or she should consider in deciding to whom to leave his or her estate; and
- Have no disease of the mind which affects the person in deciding to whom to leave his or her estate.
Undue influence means influence by someone in a position of power or control that is great enough to persuade the person signing the will to leave his or her estate to someone whom the testator would not otherwise leave his or her estate.
The most common situations leading to a challenge of a will include:
- Favouring one child over another, sometimes for good reason, sometimes not;
- Making or changing the will when the testator is sick, old and feeble;
- The deceased, having married two or more times, favours a subsequent spouse or stepchildren over children of the first marriage;
- The deceased omits to include any reference in the will to certain property; and
- Insufficient provision in a will for a dependant spouse or dependant children.
Wills can be revoked (cancelled) by signing a subsequent will or by declaring a former will to be revoked. When a person marries, all previously signed wills are automatically revoked and a new will should be signed.