Written by Andrew Powell, Partner

There isn’t really a definition of estate litigation – mostly, it is just litigation that involves estates.  Almost any kind of litigation can involve an estate.  Estate representatives are allowed to start or defend actions that a deceased could have started or defended.  On the other hand, sometimes the estate isn’t involved in the dispute at all: the dispute is over the estate.  It is a misnomer to say an estate itself is involved in litigation – an estate is not itself a legal entity.  An estate is just a collection of stuff – money, land and personal property – that once belonged to a Deceased person.
Very broadly, estate litigation can be slotted into five broad categories.

1. The Will is Invalid
Chances are strong that if there is a will, it is a valid one.  The deceased had to go to a lawyer or notary who would assess their capacity, and take instructions, and then have it signed and witnessed.  In particular cases, however, there may be a serious question as to whether a will is valid.

The action to have a will declared valid is called proving the will “in solemn form”.  The action proceeds like a normal Supreme Court action and the evidence has to call into question, for instance, the capacity of the person, or whether there was undue influence, or whether the will is otherwise legally problematic. 

Also, there may be a question of whether the will comprises a violation of an agreement made between the deceased and another person, usually another deceased person.  If, for instance, the deceased person had made mirror wills with a spouse, and there was a term that the wills were irrevocable and expressed the joint desires of both parties, then they create a testamentary contract so if one spouse dies, the surviving spouse is no longer free to dispose of all of her property as she sees fit.  Any will that is drawn up after that would be invalid, because the property wasn’t hers to give away except as per the terms of the original will.

If a will is invalid, then the estate may be distributed based on a previous will, or the estate may go by way of intestacy.

2. The will is unfair
This is probably the most common type of actual estate litigation, and it occurs when a spouse or child feels that they have not been remembered appropriately by the Deceased.  Taking an example from folklore, assume that a miller had two sons.  In his will, he left his mill to his first son and to his second son he left only his cat.  All other things being equal, the second son would very likely have a strong claim that he was treated unjustly, and would have a case to vary his father’s will.  (Of course, in that story, as it turned out, the cat was far more valuable than the mill.)

There is a statutory cause of action under the terms of the Wills, Estates and Succession Act (or “WESA”).  WESA provides that a spouse or child of a deceased person can, even where a will is valid, challenge it because it violates a legal or moral duty owed to that spouse or child.

3. The will is irrelevant or non-existent
Not all property devolves by will.  Sometimes people go to great lengths to avoid having property pass within their estate by creating trusts or jointures.  Litigation can frequently arise when you have someone who would have been a beneficiary discover that property or accounts owned by the Deceased were put jointly into the names of the Deceased and some other sibling years previously.  That potential beneficiary may well complain that the joint interests created were not an honest-to-goodness transfer of title, but were only a transfer of the legal interest, and the now-hated sibling actually holds the property or account in trust for the estate.

This is often a two-prong problem – anyone who transfers property in this way may also have disinherited the unfortunate plaintiff.  So the plaintiff would have to bring a trust claim and a wills variation claim at the same time.

4. The will is incomplete or imperfect
A major problem with estate litigation is that the one person who would be the perfect witness to explain or interpret the will is no longer available to testify.   But what if the solicitor drawing the will misunderstood instructions?  What if something was left out?  What if the testator changed his mind but that change of mind isn’t reflected in the will?
WESA introduced a new chapter in the ability of Courts to tweak imperfect wills.  That act has provisions which govern the correction (or “rectification”) of wills, and also recognizes other documents, videos, emails, letters, or notes on napkins as testamentary documents that can become part of a will.  Also, the WESA provides litigants the ability to bring the solicitor’s file into evidence, open it up and see if the will truly reflects the instructions of the testator.

5. Other
There seems to be no end of ways that people can get into fights when an estate is in the balance (and usually paying the bills).  Other common ones are cases where one party claims that another is not fit to be an executor, or where a party appears and claims to be the spouse of the Deceased, much to the surprise of other parties.  Disputes can develop over ill-defined beneficiaries or where beneficiaries cannot be located, over property whose value changes in different circumstances, over mistakes made in the management of an estate, and more.  Estate litigation is a complex and growing area where both emotions and stakes can run high.