Adams Estate v Wilson: Who has standing to challenge a Will?

by | Dec 31, 2020 | Area of Expertise, Articles & Research, James D Steele, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

A recent case from the Saskatchewan Court of Appeal reminds us of the importance of first confirming you have standing to challenge a will.

“Standing” refers to the question of whether a person has a sufficient legal interest in a given dispute. In other words, will they be in a different position, depending on the outcome of the proceeding? If they do not have such interest, they cannot be a party in that  proceeding.

In Adams Estate v Wilson, 2020 SKCA 38, an elderly woman died with no children. She left a large ranching operation, and land holdings. A neighbour, Mr. Wilson, claimed that he had helped the deceased for decades, and in return, she allegedly had promised him two things:

  1. That she would pay him $1,000 per month to help cover expenses such as gas and use of his truck and tools; and
  2. That Mr. Wilson would inherit her ranching operation and all her land, cattle and equipment when she died.

This agreement was not in writing, and Mr. Wilson was further not named in the deceased’s will.

The deceased made the will in May of 2011. It made no direct mention of Mr. Wilson. The will was vague, and not specific. It said that her executor, a Mr. Staples, knew that certain persons were trustworthy and loyal and helpful to the deceased, and Mr. Staples was to use his best judgment to ensure that some portion of the estate is given to those persons.

Mr. Wilson was also not a family member of the deceased. Thus, he would not benefit in the case of an intestacy (i.e. a situation in which no will was found valid). Moreover, Mr. Wilson was not a beneficiary of any prior will made by the deceased.

The issue:

Despite the above, Mr. Wilson brought an application to prove the will in solemn form. Solemn form means that a will must go through a much more rigorous trial process to see if it is truly a valid will. Typically, a solemn form application is brought if someone thinks a given will is invalid.

Here, the issue on appeal was whether Mr. Wilson had standing to apply for solemn form.

The Court of Appeal held that he did not. In reality, Mr. Wilson’s claim was a debt claim, not a claim involving the validity of the will. Even if he did prove himself a creditor, the Court noted that creditors have no right to challenge the validity of a will. More practically, even if Mr. Wilson struck down the will as invalid, that outcome alone would place him no closer to obtaining monies out of the estate:

  • [79]           I have concluded, based on my previous analysis, that as a creditor or potential creditor of the estate, Mr. Wilson does not have the kind of interest that would entitle him to challenge the Will or require it be proven in solemn form. As well, Mr. Wilson does not have standing as a potential creditor in that, if his application to set aside the Will was successful and an intestacy were created, there would be nothing to be gained by him as a creditor. His claim against the estate would be the same. He has no stake in the outcome and, therefore, standing under Rule 16-46 cannot be established. [emphasis added]

Alternatively, Mr. Wilson also claimed that he had standing, in that he might eventually be proven (at a future trial) to be one of the persons who were considered “trustworthy and loyal and helpful”. However, this argument too did not explain why  Wilson was therefore applying to strike down the will. If Mr. Wilson succeeded in such an application, he would invalidate the “very bequest upon which he based his claim of standing,” and have “eliminated any chance that he would take under the Will” (para 84).

Mr. Wilson later sought to appeal this decision to the Supreme Court of Canada, but leave to appeal was not given.

Conclusion:

In short, anyone who wishes to challenge a will should ask if their legal, and practical, position will be improved by striking down a given will. In the case of someone like Mr. Wilson, it appears that another strategic path open to him would simply have been to:

 

  1. Avoid the expense of a will challenge;
  2. Instead, advance his claim as creditor to a determination, while considering interim measures to pause distribution of the estate assets.

 James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

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Renouncing as executor may not always be an automatic right

by | Nov 9, 2020 | Area of Expertise, Articles & Research, James D Steele, Lawyers, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

An interesting lesson for executors comes from the recent Saskatchewan decision in Goby v Frederick, 2020 SKQB 201

Wayne Frederick passed away. His will appointed his sister, Shirley Frederick, to be the executrix of his estate. Shirley obtained letter probate.

However, the only asset in the estate is a piece of land valued at $800. Moreover, the estate of Wayne Frederick owed a lot of debt. Shirley Frederick desired to therefore renounce probate. Shirley discovered that she could not transfer the land in the estate without paying for a valuation, which she said neither she nor the estate can afford.

Shirley Frederick desired to therefore renounce probate, and hoped the Public Guardian would assume the role.

Therefore, the issue in Goby v Frederick was whether an individual has the right to simply automatically renounce as executrix of an estate, after receiving Letters Probate.

The Court held no. An individual cannot renounce, unilaterally, as executrix, after receiving Letters Probate. The Court required that Shirley bring a formal court application to be removed as executrix, and that it be served on the public trustee in view of the minor beneficiaries. An affidavit by

Shirley Frederick was to accompany the application, setting forth evidence of her inability to administer the estate.

The lesson:

Persons who are named executors of problematic estates (i.e. ones with high debt, or whose administration may be difficult to carry out) should be sure that they wish to serve as executor.

Once an executor obtains letters probate, if you later decide you wish to renounce, you may need to go to the expense and time of a court application to do so.
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James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

How to avoid your Will from becoming challenged after you die

by | Oct 23, 2020 | Area of Expertise, Articles & Research, James D Steele, Q&A, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

More and more wills are being contested in Saskatchewan each year. And the sad truth is that many challenges are avoidable if the will-maker had done one or both of the below things:

  1. Hired a lawyer to draft their will, and keep good notes of their instructions;
  2. Told the will-maker’s family of the terms of the will, before they died.

On numerous occasions I have seen situations in which a person had sought to avoid the cost of a lawyer-made will. They therefore draft their own will. When the person later passes away, the result is sometimes a confusing will, often made in secrecy and without any independent notes showing the true intention. This situation often spawns litigation, which can then drain tens of thousands of dollars in legal fees from the estate. 

Thus, the first lesson is this: think carefully about perhaps hiring a lawyer to make your will. Moreover, if possible, look for a lawyer who actually specializes in wills and estates, and better knows all of the questions to ask, and situations to avoid.

Second, talk through your goals and assets with your children, and keep notes of such conversation. This is especially true if your new will is making a departure from a prior will. It is far more difficult for a child to later suggest you had dementia, or were pressured into making your will, when the child had the opportunity to talk about your will with you in person.

A will is one of the most important pieces of paper you can ever sign. It can control who is left in charge of your children, your home, and your savings. It is meant to give you peace of mind that when you pass on, your wishes will be followed. It is therefore worth putting in the time to ensure your will is done right.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

DIVISION OF FAMILY PROPERTY: ENTITLEMENT TO FARMLAND OWNED BY EX-SPOUSE AND THIRD PARTIES

by | Oct 21, 2020 | Agriculture, Articles & Research, Family Law, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

When two parties are separating and dividing the family property, there may be questions surrounding property owned by one of the spouses and third parties. In Saskatchewan, this is particularly true for farmland. Often a husband or wife will own farmland with their parents for estate planning purposes. So how does the court deal with this in the division of family property?

Courts ask two questions: first, is the farmland matrimonial property? And if so, what value should be attributed to it?

The answer to the first question is simple. As defined in The Family Property Act, family property means any real or personal property, regardless of its source, kind or nature, that, at the time an application for separation is made, is owned, or interest is held, by one or both spouses, or by one or both spouses and a third person. A joint tenant owns a legal right in the property by virtue of being a registered owner on title. Therefore, farmland held by one spouse in joint tenancy with their parents is family property as defined in the Act.

The second question is where the true analysis lies – what value should be attributed to the jointly held farmland? If the joint tenancy was legitimately for estate planning purposes, its value for the division of family property will be nil. This is because the spouse, and therefore the family unit, did not collect a benefit from the farmland during the marital relationship. Rather, the spouse was simply on title for estate and succession planning once their parents pass away. Courts will look to factors such as who maintained control over the land, who used the land and who paid the expenses and received the benefits from the land when determining if a transfer of title was truly for estate planning purposes. If there is evidence to suggest the spouse received a benefit from the land during the marital relationship, it will be assigned a monetary value by the court and be subject to division. 

Should you have any questions about the division of family property, or need advice on your family law matter, please contact Robertson Stromberg LLP.

Effect of Marriage or 24 Months of Cohabitation on Your Will – Changes to the Wills Act

by | Sep 21, 2020 | Darlene N Wingerak, News, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

The law in Saskatchewan used to be that an existing will would be revoked when the will maker married or upon the will maker cohabiting in a spousal relationship continuously for two years, unless there was a declaration in the will that it was made in contemplation of marriage or cohabitation in a spousal relationship.

This meant that if an existing will of a person made prior to getting legally married or cohabiting in a spousal relationship did not have the required declaration stating that it was being made “in contemplation of marriage” or “in contemplation of cohabitation in a spousal relationship” their will would become invalid upon their marriage or cohabitation of 24 months.

This law has now changed. Effective March 16, 2020 these sections of The Wills Act were repealed. This means a will made prior to a marriage or cohabitation of 24 months that occurs on or after March 16, 2020 will remain valid until a new will is created. A declaration in the will that it is made in contemplation of marriage or cohabiting in a spousal relationship is no longer required for it to remain valid upon a marriage or cohabitation of 24 months occurring on or after March 16, 2020.

To be clear, this change is not retroactive. A will that was revoked because of a marriage or cohabitation of 24 months occurring prior to March 16, 2020 will remain revoked.

These changes were enacted concurrently with changes to The Marriage Act which allows family members of a person to apply to court to nullify a marriage if a person did not have the capacity to provide valid consent.

It is important to have a legally valid will and to review it periodically to ensure its provisions are appropriate having regard to your life circumstances at any given point in time. When a person dies without a legally valid will in place they will be found to have died “intestate” and the beneficiaries of their estate will be determined in accordance with The Intestate Succession Act.

It is especially important to have your estate planning documents reviewed when there has been a significant change in your life such as marriage or cohabitation of 24 months so you can make necessary updates. Starting a family, acquiring significant property with your spouse or others, and dealing with added complexities of succession planning if you are an owner of a business are other examples of significant changes in your life warranting a review and update your will.

The lawyers at Robertson Stromberg would be pleased to guide you through these changes and provide you with practical advice for your estate planning. For more information please contact Darlene N. Wingerak at [email protected]

This post is for information purposes only and should not be relied on for legal advice. Please contact Robertson Stromberg LLP for legal advice concerning your case.

 

Area of ExpertiseWills, Estates, Trusts, Health Care Directives and Powers of Attorney