What is estate litigation?


Litigation may be simply described as a contest in a court of justice for the purpose of enforcing a claim or right. For example, when family members cannot agree on an issue relating to dad’s or mom’s Will or Power of Attorney, the matter can be referred to a Court of King's Bench Judge in the Province of Manitoba for the purpose of making a ruling on the issue in dispute.

The Will

Generally speaking, Wills disputes often relate to a challenge that the testator did not have capacity at the time he or she gave instructions to the lawyer to draft the Will or was unduly influenced to make bequests in the Will that he or she would normally not have made. Other disputes relating to the Will often focus on the manner in which the executor has failed to properly administer the estate.

Power of Attorney

Mom or dad, for example, may appoint one of the children to look after their affairs in the event he or she becomes incapacitated. Once more, issues of capacity sometimes arise whereby it is alleged that the donor (mom or dad) did not have the capacity to instruct the lawyer at the time of the Power of Attorney documents were being drafted or was unduly influenced to appoint a particular individual to act as his or her attorney. (The term attorney is confusing. It does not mean lawyer but refers to the individual being appointed to look after mom’s or dad’s financial


The second area of dispute often relates to how the attorney has administered or looked after mom’s or dad’s finances. The taking of property inappropriately, the inappropriate gifting, and/or taking fees are areas where disputes often arise.

Wills in Manitoba are governed by The Wills Act. They must be properly executed, i.e. witnessed by two individuals who are not beneficiaries and signed by the testator. Upon the testator passing away, a Request for Probate can be made by the executor to the Court of King's Bench. The Probate Office will review the Will to determine whether it appears to have been properly executed and will most times grant the Request for Probate, thereby resulting in the executor becoming a court-appointed trustee.

The Executor’s Role

Executors have a fiduciary duty to act in the best interest of the estate and beneficiaries. They are to gather in assets, pay all debts, and then distribute the estate in accordance with the testator’s wishes. They also have a duty to provide to the beneficiaries an accounting as to what they have done.

Estate Disputes

Sometimes it is unnecessary for an estate to be probated. For example, if prior to his or her passing the deceased disposed of most of his or her property, there may not be a need for Grant of Probate to transfer real property or gain access to bank accounts. For the most part, however, the process begins by the executor making an application for probate. 

If in fact there is a suspicion that perhaps the deceased did not have capacity or was unduly influenced to write or change a preexisting Will, then our Court of King's Bench Rules permit a Caveat to be filed at the court that will prevent the Request for Probate to proceed until such time as the person filing the caveat has been given notice and an opportunity to proceed to court to challenge the Will.

In other words, the administration of an estate can actually be prevented before it is even started. Even if there is no Will, the deceased’s assets will have to be dealt with and disposed of. In Manitoba, The Intestate Succession Act puts forth a “formula” to deal with estate administration when there is no Will.

Application to Court

Whether the dispute relates to a Power of Attorney or a Will, the usual process in bringing the matter to the attention of a judge is to file what is called a Notice of Application. Once more, this process is set forth in the Court of King's Bench Rules. 

The Notice of Application is a summary of the concerns and issues you, as an interested party in the deceased’s estate, have. It may be that you will be asking the court to put in some controls with respect to the way an executor has been conducting himself or herself, or you might be asking the court to review the circumstances surrounding the making of a Will and ultimately seeking a declaration that the Will is invalid. 

The Notice of Application process is also available to the executor who, if in fact, an issue arises during the course of the estates administration, to seek the advice and direction” from the court with any concerns he or she has, including any issues that are brought up by beneficiaries.

The Affidavit

The Notice of Application must be supported by evidence. The “story” must be told that sets out what issues have arisen either with respect to the preparation and execution of the Will or the administration of the estate. This evidence is  presented in affidavit form. The affidavit usually sets out a brief family history and background concerning the deceased along with a more focused presentation of the concerns the party has. If, for example, there are issues relating to  testamentary capacity there may in fact be affidavits presented by healthcare providers or others that cared for the deceased around the time the Will was executed.

The Process

The Notice of Application and supporting affidavit or affidavits are filed with the court and then must be served on all interested parties. Those who might be reasonably defined as interested are usually members of the family, beneficiaries and often the Office of the Public Guardian, especially if there are beneficiaries under the age of 18. The Notice of Application will have an initial return date before the court. The Court of King's Bench in Winnipeg has a sitting called the Uncontested List, Monday through Friday at 10:00 a.m. The first court appearance is usually two to three weeks after service of the Notice of Application and affidavit. 

The First Court Appearance

The Uncontested List may be best described as a “triage” court. The judge reviews the materials and determines whether or not the matter is urgent, can be preceded on an uncontested basis or ought to be referred to what is called the “Contested List.” 

The parties who have received the Notice of Application and supporting affidavit material are entitled to be represented by counsel if they so choose and further are entitled to file their own affidavits in response. In fact, sometimes the individuals who are served file their own independent Applications, raising other issues that they would like the judge to review and determine. 

Usually, this first court appearance is adjourned to permit the parties to file their materials and to ensure that every interested party has been served. In fact, this initial appearance on the Uncontested List may be adjourned up to two or three times before the judge, after hearing representation from counsel and individuals concerned, makes a determination as to how, from a procedural standpoint, the dispute needs to be resolved.

What about Power of Attorney Disputes?

The process of having the court determine a Power of Attorney dispute is the same as with a Wills dispute. Powers of  Attorney in Manitoba are governed by The Powers of Attorney Act which specifically provides that an interested party may make application to court for a determination of an issue. Similarly, the attorney who has issues that cause him or her concern may make application to court for advice and direction. The same template is followed with respect to the Court of King's Bench on first appearance on the Uncontested List acting as a triage station to determine what process should be followed in order to bring the dispute to an expeditious and just conclusion.

The Contest

Sometimes disputes are viewed as urgent by the parties and the court agrees. In these cases, the process can be expedited by the court and the matter heard by a judge on fairly short notice, i.e. within days or weeks of the initial court appearance.

In most cases, the triage process results in the judge directing that the matter be referred to what is called the Contested List. This usually occurs where there are key factual disputes that cannot be readily ruled upon by the judge.

What is contained in the affidavit is tested by cross-examinations. In most cases, the parties who have sworn or affirmed affidavits are cross-examined in a lawyer’s office before a court reporter. The answers and questions are transcribed and a transcript is prepared for later use in court.

Sometimes, the matter can be referred back to a judge who will hear legal arguments based on the evidence contained in the affidavit and cross-examinations which are filed with the court.

Sometimes the court determines that while the affidavits and cross-examinations are helpful, it is quite clear that issues of credibility need to be address and the parties must appear in person before a judge at trial to testify in open court.

In addition to the parties directly interested in the estate, sometimes experts are called upon to testify whether they are medical experts or perhaps financial experts, such as financial planners or accountants.

What about settlement?

It is often said that most disputes are resolved by way of negotiated settlement. The Court of King's Bench has a process in place where the parties may request that a judge act as a mediator to help the parties find common ground and perhaps settle the case without the necessity of further court proceedings. This process is called Judicially Assisted Dispute Resolution (JADR).

What will this cost me?

Often clients simply want to know the answer to the “how much” and “how long” questions. How much will this cost? How much am I likely to receive from the estate? How long will this all take?

Unfortunately, estate disputes often prove to be expensive. That is because legal fees are often directly related to how complex the issues are. Not surprisingly, the issues raised in many estate litigation problems are in fact complex and time-consuming to resolve.

Usually, after the affidavit materials have been filed, the “how much” and “how long” questions can be more easily addressed, if not answered, with some degree of precision by establishing a litigation budget. Each case is different and unique.

Who pays?

This particular question is timely in that historically the court often ordered the payment of everyone’s legal fees, both those who brought the application and those who responded, out of the estate. This was based on the fact that generally speaking, the parties found themselves before the court through no fault of their own but rather as a result of some flaw or issue that arose during the taking of instruction to draft the Will or the actual execution of the Will.

However, more recently, the courts have begun to recognize that often in these estate disputes, there is in fact an  innocent party that ought not to be penalized by paying his or her own legal fees. The court will sometimes order that the party the court considers to have been unreasonable to pay in whole or in part out of their own resources the legal fees incurred by the “innocent” or reasonable party.

As a consequence, it is important that all parties involved in the estate dispute recognize that there may be serious cost consequences to them if they elect to take unreasonable positions with respect to the estate and its administration.


Estate Litigation, whether involving Wills or Powers of Attorney, can be “exhausting” both financially and emotionally for family members. This area of the law has been in development for hundreds of years, yet each case is unique and each dispute brings novel challenges.