The lawyers at Friedman Estate Litigation combine an aggressive and practical approach to navigating you and your family through any area of estate litigation. Friedman Estate Litigation prides itself on having an edge in litigating estate, trust, capacity and guardianship disputes due to their primary focus on estate litigation.
Will Challenges & Defence
Friedman Estate Litigation represents the interests of beneficiaries and represents Estates in a wide range of will challenges and defence cases.
Will Challenges:
- the deceased lacked the necessary capacity to give instructions regarding their will;
- the deceased lacked the necessary capacity to change their will;
- the deceased was unduly influenced by a family member, friend, caregiver, etc. in preparing or changing their will;
- the circumstances surrounding the preparation or change of the deceased’s will are suspicious;
Will Defence: Friedman Estate Litigation also acts for estates and estate trustees who are defending will challenges in order to obtain a court order or judgment declaring the deceased’s will to be valid in order for the estate trustee(s) to administer the assets of the estate in accordance with the deceased’s intentions and wishes.
Guardianship Applications
As an elderly parent loses the capacity to properly manage his or her own finances and/or medical care it can be an extremely emotional time, especially in situations where family members cannot agree on what is in the best interest of the parent and/or cannot agree on who is in the best position and therefore should make the decisions on behalf of the parent.
Friedman Estate Litigation provides advice to clients to help them navigate through various guardianship, power of attorney and capacity related disputes and litigation. We will ensure you are properly advised while at the same time take a cost conscious approach to ensure you fully understand these often new, unique circumstances, while at the same time explain to you all of your options, provide you with the realistic expectations of what you can achieve and strive to aggressively and effectively pursue your goals and instructions.
Friedman Estate Litigation works with clients in matters relating to:
- Guardianship applications
- Power of attorney disputes
- Capacity disputes
Contact us now for a no obligation 30 minute consultation.
Dependants Support
If you were being supported by someone who recently passed away you may be entitled to receive support from their estate.
Ask yourself this; Am I a spouse, parent, child, or sibling of the deceased? Was the deceased supporting me and/or my lifestyle immediately prior to his/her death? Did the deceased pass away without a will or with a will wherein I am not named?
If you answered yes to the above, you may be entitled to support.
Section 58(1) of the Succession Law Reform Act provides the Court with the statutory authority to order the provision for the proper support, as it considers adequate, of a deceased’s dependant(s) out of the estate of the deceased, whether he or she died with or without a will.
A dependent is classified by the Section 57(1) of the Succession Law Reform Act as one of the following; (a) the spouse of the deceased, (b) a parent of the deceased, (c) a child of the deceased, or (d) a brother or sister of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.
Spouse: Section 57 of the SLRA contains an expanded definition of a spouse. It includes not just married spouses, but also either of two persons who, (a) were married to each other by a marriage that was terminated or declared a nullity, or (b) are not married to each other and have cohabited (i) continuously for a period of not less than three years, or, (ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child
Parent: The SLRA defines parent to include a grandparent as well as a person who has demonstrated an intention to treat the deceased as a child of his or her family (with limited exceptions for foster children). This essentially means that any relative or non-relative, who showed an intention to treat the deceased as his/her child would meet the criteria.
Child: Under Part V of the SLRA, the definition of a child includes a grandchild as well as a person whom the deceased has demonstrated an intention to treat as a child of his or her family (with limited exceptions for foster children).
Now, just satisfying the relationship criterion is not enough. To qualify as a dependant, one has to be either been receiving or entitled to receive support from the deceased immediately before his or her death as outlined in Section 57(1).
You may ask, what qualifies as “support”? Is it cash? Shelter? Food? All of the above?
Support commonly includes shelter, transportation, food, heat, hydro, clothing, education, etc.
If you think you may be entitled to dependant’s support or have any questions please contact us for a no obligation 30 minute consultation.
Appeals
When it comes to an appeal, you need a law firm that is passionate about the unique nature of appeals. This practice requires specialized knowledge and experience with the appeal process and the appellate courts.
The lawyers at Friedman Estate Litigation have represented a broad range of clients and argued a wide variety of appeals in Estate Litigation at both the Divisional Court and the Court of Appeal. Our experience before the Court of Appeal is a definite advantage. Whether you won at trial and face an appeal or lost at trial and want to launch an appeal, we can help you determine the final outcome of your, or your client’s, case. Also, if you lost or won an interlocutory motion and need leave to appeal to the Divisional Court we are here to help. We also act for clients in Estate Litigation matters who seek to appeal applications and motions, such as summary judgment motions.
We work directly with clients on our appeals and ensure our clients are involved, properly informed and understand the process and arguments which form part of the appeal. We also are very familiar with helping counsel deal with appeals for their clients. We are pleased to employ our expertise and experience as lead counsel or in a secondary or consulting role.
Power of Attorney Disputes
Power of Attorney disputes are often emotionally fuelled and can result in lengthy litigation.
A family member may be concerned that an appointed Power of Attorney is acting improperly or stealing. This may be the case or it may be simply that the Power of Attorney is not communicating effectively with family members.
Section 32(5) of the Substitute Decisions Act states that an attorney has a duty to consult with family members and keep them informed as to the incapable person’s health and wellbeing.
Section 32(4) of the Substitute Decisions Act states that an attorney has a duty to foster personal contact between the incapable and his or her supportive family members.
Most importantly, section 32(6) of the Substitute Decisions Act requires a Power of Attorney to keep proper records and to provide updates regarding the incapable person’s financial circumstances.
The duties of a Power of Attorney are ongoing and it is possible for an attorney can be held personally liable for any damages that results from a breach of his or her duties.
If your parent, sibling or family member is incapable and if you believe their Power of Attorney is acting improperly, not communicating with you or stealing contact Friedman Estate Litigation today.
Passing of Accounts
An accounting is a process whereby the trustee shows and/or tells the beneficiaries what assets and liabilities formed part of the estate initially, how they were dealt with by the trustee, what money he/she received, what money was spent and why and what is remaining to be distributed once all liabilities have been paid and any and all assets converted to cash (if any and subject to the terms of the will).
Many complaints made about estate trustees arise out of the failure of trustees to give a proper accounting for what they have done to the beneficiaries of an estate.
This can potentially cause the beneficiaries to believe that the trustee has acted incorrectly, improperly, negligently or even that the trustee has stolen from the estate.
An accounting is needed to protect both the beneficiaries and the trustee of an estate.
A beneficiary is entitled to know how much he is to receive; to be sure that he or she is getting the amount of money he or she is entitled to receive, and that the trustee has acted honestly and in his best interests.
A trustee of an estate is required and obligated to account to the beneficiaries and can do so either formally (by way of a passing of accounts) or informally (for example, by way of an interim accounting).
If an estate trustee has failed to account to beneficiaries, the beneficiaries are able to force the trustee to prepare a formal accounting (passing of accounts) through the court.
If you are an estate trustee and need assistance with the preparation of an accounting, if you are a beneficiary who is concerned with an estate trustee’s administration of an estate or a beneficiary who has not received any accounting from an estate trustee please do not hesitate to contact us for a no obligation 30 minute consultation.
Quantum Meruit
A quantum meruit claim is a claim for services rendered on the basis of a contract having been entered into between two parties where the contract has not been seen to completion or where the contract cannot be proven or is unenforceable.
A quantum meruit claim generally occurs against an estate where the deceased promised a future action or payment to an individual, on which basis the individual performed an action, and the promise by the deceased was not satisfied during life or through the deceased’s testamentary dispositions.
Estate Trustee During Litigation & Professional Trustee Services
An Estate Trustee During Litigation (ETDL) or Professional Estate Trustee is often appointed by the Court to administer an estate while litigation is ongoing or when an estate trustee is removed by the Court.
An ETDL can be appointed by the court as part of a will challenge or where there is another other type of litigation involving an estate and when the estate administration is "complex", meaning when the estate assets are not all liquid.
The role of an ETDL is to preserve estate assets, assist the parties in obtaining the documentary and other evidence necessary to resolve the estate dispute (for example medical and financial records) and to otherwise administer the estate and fulfill the role that an estate trustee would had while the litigation is ongoing so that when the litigation is resolved or disposed of by the Court, the estate is in a position to be distributed to the beneficiaries.
Friedman Estate Litigation provides advice to ETDLs, including trust companies, who have been appointed as an ETDL and also acts as ETDL, when appointed by the Court.
We also can help obtain the necessary court order to have an ETDL appointed.
In some circumstances, due to the nature or complexity of the estate, it will be advantageous or necessary for a member of our firm to act as an ETDL.
Jonathan M. Friedman has been appointed by the Court to act as an ETDL in several complex and challenging estates. Jonathan has also been appointed as a Trustee During Litigation for the purpose of administering a trust while the trustees of the trust were in the midst of a complex and lengthy litigation.
Jonathan is also often appointed as a neutral, independent estate trustee by beneficiaries involved in litigation or when there is a dispute amongst existing trustees of an estate or trust which cannot be resolved.