In-Depth Notes on Estate Litigation

Definition: Legal disputes regarding the distribution of a deceased person's estate.

Application for Advice and Direction: Request court assistance for guidance on estate matters, especially for pre-approval of plans when beneficiaries are in agreement.
Formality Challenges: Contesting the will's validity based on execution or capacity, involving certain presumption rules.
Inter Vivos Transfer Disputes: Issues arising from gifts made by the deceased during their lifetime, particularly regarding capacity and intent.
FMS Claims: Related to Lecture 19, specifics not provided in the notes.
Capacity Challenges: Questions regarding the mental ability of the testator at the time of will creation.
Undue Influence: Claims that another party exerted such significant pressure on the testator affecting their true wishes.

Purpose: To seek the court’s direction or pre-approval when no beneficiaries oppose a plan.

Presumptions:
- Rule #1: Propounder must prove execution, approval, and capacity.
- Rule #2: If duly executed, approval and capacity are assumed.
- Rule #3: If there are suspicious circumstances, the burden shifts to the propounder to prove execution, approval, and capacity.

Capacity Issues: Transfers can be contested if made when the deceased lacked capacity.
Intent: Adding a joint owner without the intent to gift can be scrutinized under resulting trust principles (Pecore v. Pecore).
POA Decisions: Actions taken by an attorney using Power of Attorney can affect the estate, such as gift adeemed by selling a bequest item.

Assumption: Capacity is assumed if due execution is verified.
Attack on Will: Must present evidence challenging capacity creating suspicion.
Evidence Sources:
- Observations from friends/family and medical professionals.
- Notes and observations from lawyers during will preparation (Banks v. Goodfellow Test).

Definition: A valid will can be challenged if undue influence is established, even if the testator had capacity.
Threshold for Evidence: Requires demonstration that the document reflects another's will rather than the testator’s, based on the severity of influence (Banton v. Banton).

Challenges: The deceased (testator) cannot testify, making their perspective unavailable.
Alberta Evidence Act: Requires corroboration for testimonies from beneficiaries/executors to ensure reliability due to potential bias.

Historical Context: Courts typically ordered the estate to pay both parties' costs; viewed as the testator's fault for improper planning.
Contemporary Approach: Now, the losing party generally pays for the winner's costs, based on the reasonableness of the challenge and behavior of parties involved.

Personal Desire for Legacy: Control over after-death affairs, ensuring care for loved ones, providing peace of mind.
Societal Desire for Harmony: Potential for conflict over estate distribution; various claims we arise based on family dynamics and relationships.
Societal Desire to Resolve Rights: Legal recognition of rights to be exercised by others post-mortem, emphasizing need for clear estate resolutions.

Will Creation: Must be signed in presence of two witnesses or written completely in the testator’s handwriting.
Executor Role: Appointed to manage estate assets and ensure proper transfer to beneficiaries.
Intestacy: Default provisions apply if no executor/beneficiaries are specified.
Court Role: Courts resolve ambiguities, disputes, and endorse wills for third-party reliance (Grants of Probate/Administration).

The entire legal framework aims to ensure orderly resolution of estates, catering for personal and societal needs for legacy and harmony.