Q: My family has dissolved into a big estate fight. I am the executor of our mother’s will; my dad died years ago. My siblings are accusing me of influencing my mom to change her will. My lawyer says we should deal with this and prove her will “solemnly.” I am not sure what she’s talking about. Can you help?
A: Canadian law surrounding wills and estates has its roots in English law dating back hundreds of years. Some of these old concepts still apply in the modern world.
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In Canada, the law relating to wills is a provincial concern. While I can provide a general explanation of the law, it is important to get specific advice from a lawyer in your province.
First, your lawyer is talking about “proving” the will of your mother, or obtaining letters probate. This refers to the court application process by which an executor obtains the legal power to deal with the estate assets.
If the court is satisfied that the will is valid, it will grant letters of probate to the executor named in the will. After that, the executor proceeds to deal with the estate assets and debts as directed by the deceased person as set out in the will.
There are two traditional ways of proving the will: common form and solemn form.
Common form is usually used and governs most situations, mainly because there is not usually opposition to a will – no one is contesting its validity for legal reasons. As a result, the will goes before the court in a straightforward way with the basic required information and is then approved. There is no real assessment of the validity of the document, except for the basics. The executor then proceeds to deal with the estate assets.
Proof in solemn form has higher requirements. The person seeking probate is usually required to give notice of his application to everyone who could be interested in the estate.
Oral testimony is often required, particularly if there is doubt about the validity of the will.
If solemn form is obtained, no one can challenge the validity of the will at a later date. Everyone gets notice, so if they have a complaint that’s the time to raise it. If it isn’t raised at that time, it cannot be raised in the future. The only exception is in the case of fraud or the discovery of a will dated later than the one submitted to the court.
If the usual grant in common form is obtained, people with a complaint about the will are allowed to challenge it at a later date. The grant of probate given by the court is usually revoked if the will is shown to be invalid, and the executor may be personally liable for the acts he has done in the meantime.
If there is potential for a challenge to a will, proceed in solemn form. If no trouble is foreseen, common form should do.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. He can be reached at thelaw@producer.com.
