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Publié par | Self-Counsel Press |
Date de parution | 01 septembre 2018 |
Nombre de lectures | 2 |
EAN13 | 9781770404984 |
Langue | English |
Poids de l'ouvrage | 1 Mo |
Informations légales : prix de location à la page 0,0032€. Cette information est donnée uniquement à titre indicatif conformément à la législation en vigueur.
Extrait
Contesting a Will without a Lawyer
The DIY guide for Canadians
Lynne Butler, LAWYER
Self-Counsel Press (a division of) International Self-Counsel Press Ltd. USA Canada
Copyright © 2018
International Self-Counsel Press All rights reserved.
Contents
Cover
Title Page
Introduction
Chapter 1: The Why: Pros and Cons of Suing an Estate
1. Potential Upsides of Suing an Estate
2. Potential Downsides of Suing an Estate
3. What Is Your Motivation?
4. Conflicts of Interest
5. Deadlines for Starting Your Lawsuit
6. Before You Start a Lawsuit, Consider a Demand Letter
Sample 1: Demand Letter
Chapter 2: Grounds for Contesting a Will
1. The Three Basic Types of Estate Lawsuits
2. On What Grounds Can a Will Be Contested?
3. Curative Provisions in Legislation
Checklist 1: Is the will Properly Executed?
Table 1: Curative Provisions by Province
Chapter 3: Relief Claims
1. Who Is Entitled to Ask for Dependant’s Relief?
Table 2: Who Has the Right to Claim Dependant’s Relief?
2. What Exactly Are You Suing For?
3. Ramifications for Individuals Receiving Disability Support from the Government
Table 3: Assets That May or May Not Interfere with Receipt of Government Benefits
4. What Factors Affect the Outcome of a Dependant’s Relief Application?
Chapter 4: Resulting Trust and Unjust Enrichment
1. Resulting Trust and Unjust Enrichment
2. What Happens to the Promised Asset when You Claim Resulting Trust?
3. Unjust Enrichment
Chapter 5: Clarification or Rectification of a Will
1. Clarification of a Word, Phrase, or Term in a Will
2. Exceptions to the “Limited Extrinsic Evidence” Rules
3. Rectification of a Will
Chapter 6: Ownership of Joint Assets
1. Joint Ownership
Checklist 2: To Whom Does the Jointly Owned Asset Actually Belong?
2. The Executor’s Position
3. Undue Influence
4. The Evidence Needed
Chapter 7: Chambers Applications
1. Our Court System
2. Removal of an Executor
3. What Happens If Nobody Can Agree on Anything?
4. What Do I Have to Prove?
5. Passing of Accounts
6. Procedural Questions
7. Preliminary Matters before Trial
Chapter 8: How to Get Your Lawsuit into Court
1. First Step: Statement of Claim
2. Interlocutory Applications
3. Filing a Caveat
Table 4: Caveat Expiry Times
4. What Forms Do I Need?>
5. Where Exactly Do I Start My Lawsuit?
Table 5: Where to File Your Statement of Claim
6. How Do I Serve Documents on Someone?
Table 6: Time Limits for Service
7. Affidavit of Service
8. Court Dates
Checklist 3: Beginning Your Lawsuit
Chapter 9: Proving Your Case
1. What Is the Standard of Proof?
2. Who Has Burden of Proof?
3. Does It Matter If Probate Has Already Been Granted?
4. Whom Exactly Do I Have to Sue?
5. What’s a Frivolous or Vexatious Lawsuit?
6. What Evidence Will I Need and How Do I Get It?
7. “Best Evidence” Guidelines
8. Types of Evidence Commonly Used in Estate Litigation
Chapter 10: Preparing Affidavits
1. Different Kinds of Affidavits
2. Who Can Make an Affidavit?
3. How Do I Write an Affidavit?
Sample 2: Affidavit in Support
4. What Do I Do about Exhibits?
5. Once It’s Prepared, What Do I Do with It?
Chapter 11: Preparing a Memorandum of Law and Argument
1. Legal Research to Support Your Case
2. Secondary Sources
3. Where Do I Find Secondary Sources?
4. What Is Precedent?
5. How Do I Know Which Cases Apply to Me?
Sample 3: Case Report
6. Is There Anyone Who Can Help Me with Legal Research?
7. What Goes into the Memorandum of Law and Argument?
8. What Format Do I Use?
Sample 4: Memorandum of Law and Argument
9. Tips on How Your Memorandum of Law and Argument Should Look
10. How to Include Statutes and Cases in Your Memorandum
Chapter 12: Cross-examination on Affidavits
1. Why Cross-examine?
2. When Are Cross-examinations Done?
3. Where Are Cross-examinations Held?
4. What Is the Procedure for a Cross-examination?
5. Who May Do Cross-examinations?
6. Who Can Be Cross-examined?
7. What May I Ask?
8. Preparing in Advance to Cross-examine a Witness
9. What Goes into My Examination Book?
Sample 5: Examination Book Page
10. What Is an Undertaking?
11. How Do I Decide on My Questions?
Chapter 13: Costs
1. Can I Get Legal Aid?
2. Will the Other Side Cover My Costs?
3. What If I’m the Executor?
4. How and When Do I Ask for Costs?
5. How Much of My Bill Is Covered If I Win Costs?
6. How Do I Fill in a Bill of Costs?
Table 7: Bill of Costs
7. Can the Other Side Get Costs against Me?
Chapter 14: Alternatives to Court Battles
1. Are There Alternatives to Fighting It out in Court?
2. Demand Letter
3. Negotiations
4. Without Prejudice
5. Mediation
Download Kit
About the Author
Notice to Readers
Self-Counsel Press thanks you for purchasing this ebook.
Introduction
There are hundreds of ways in which the estate of a deceased person can end up in a fight. Sometimes a complex legal issue comes up and can only be resolved by a judge. In other cases it’s a matter of people not being able to settle specific but important issues. Despite there being so many ways for estates to fall apart, there are not many ways to resolve the disputes. There is no government estate department or agency whose job it is to ensure that estates run properly. Many estate disputes end up in court.
The purpose of this book is two-fold. One is to inform you about the types of lawsuits that touch on estates and what is involved in each of them, to help you decide whether or not you want to begin the process of suing someone due to an estate dispute. Starting a lawsuit is a serious matter and you need to think it through with the facts at hand. The other purpose is, for those who decide to go ahead with litigation, to help you navigate the paperwork and the courts.
In this book, I do not encourage people to sue each other, nor do I attempt to talk anyone out of it. Estate litigation is an enormous undertaking that is not to be taken lightly. It’s expensive, time consuming, and often ugly. However, I fully understand that sometimes it is necessary or advisable to sue an estate or contest a will.
In this book, I strive to be straightforward and factual. I was first called to the bar 31 years ago and have always practiced in the area of wills and estates. I have handled many estate lawsuits in that time and I hope to lend my experience to those of you who are working on such cases without a lawyer. Even those of you who are working with lawyers will find this book useful as it will explain things that your lawyer won’t have the time to explain. It will show you samples of the documents used in such cases with explanations of why those documents are being prepared. This should help you save a great deal on your legal fees as you will be better prepared for your meetings with your lawyer and will use less of his or her time.
While there will be discussion of the idea of suing an estate that is intended to guide you through a sensible decision-making process, this book will also provide specific help. There will be samples of the forms needed in each province and territory to get matters into court, and checklists to ensure you stay on track.
This book does not cover defending against someone who is contesting an estate. This book is about launching the lawsuit and how to approach the various steps you will need to take to move your lawsuit through the legal system. However, the information in this book will be helpful to anyone, either launching a lawsuit or defending one, to understand the legal process and to anticipate next steps.
In this book, I don’t include information about estates in Quebec. This is because all provinces and territories in Canada use a common-law legal system except for Quebec, which has a civil code. Quebec’s laws, processes, and forms are all very different from those in the rest of the country.
Chapter 1
The Why: Pros and Cons of Suing an Estate
Before getting started on a lawsuit, read this section about the upside and the downside of starting litigation. What is it that you want from the will challenge? What can you expect to achieve, and what will it cost you in terms of time, money, and emotional strain to reach that goal? Be realistic about your situat