The Difference Of Contesting a Will vs. Trust
There are a variety of reasons why you may need to challenge the validity of a will, or you may need to contest the provisions of a will for inadequate maintenance. While these cases are common, albeit challenging, you should not believe that the process of disputing any estate planning provision is the same.
Contesting a Will vs. Challenging a Will
There is no one way to contest or challenge the validity of a will. But there are some differences in what your legal arguments may include.
To challenge the validity of a will, someone, typically a family member who is a beneficiary, must come forward with allegations of improper execution, testamentary incapacity, or undue influence.
From there, the will’s executor must show that the will was properly executed and the testator had testamentary capacity at the time of its execution. Conversely, the individual(s) alleging undue influence, improper execution, or lack of testamentary capacity, must prove that there was an element of influence exerted over the will-maker by a person who held authority or trust.
Should the court find that the will was not created in a valid form, or the will was created as a result of undue influence, the will is deemed invalid. The courts may use a prior will, or if none exists, the courts will say that the will-maker has died intestate and the courts will determine estate distribution.
If the will was drafted properly but does not leave adequate provisions for the spouse of children of the deceased, the will undergo the wills variation process. When a will is subject to variation, the court will utilize The Wills, Estates and Succession Act which regulates estate distributions to ensure that adequate provisions are made for the care and maintenance of loved ones.
In these cases of unfair distributions, wills variation is likely needed and the court will look at the specific needs of the family, the financial limitations, gifts made in the past, etc.
While these cases achieve a same end result – ensuring a will is proper, valid, and fair – the process of getting there differs, much like in the process of disputing a trust.
Disputing a Trust
The role of a trustee is to ensure that the trust is administered in accordance with all instructions including:
- Management of the assets of the trust with good faith and care;
- Distributing the property of the trust when required;
- To perform accounting duties such as paying debts of the estate; and
- To communicate with beneficiaries.
However, when the trustee doesn’t fulfill their duties, or you suspect something is amiss with the trust, you may need to take legal action. Most often, disputing a trust will not involve disputing the terms within it (unless there is a provision that is factually incorrect) but rather, is a dispute of breach of duty.
Estate litigation is complicated and only made more complex because of the emotional strain. However, when you have complications with a loved one’s will, you don’t have to handle it alone. Klein Lawyers can help.
Contact Our Wills Variation, Will Dispute Lawyers Today
Challenging a will or questioning a loved one’s final wishes is complicated. But Klein Lawyers can help you navigate the legal process.
Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.