Dealing with a contentious last will

The death of a loved one is one of the biggest emotional traumas we will likely face.

But what happens after their passing, as you start to work through the grieving, if there’s a problem with their will?

A sibling from away feels they’re being treated unfairly.

Your big brother is getting more than you.

Someone else stands to inherit a family heirloom you feel should rightly come to you. Nan said it was going to you and now it’s not.

Maybe a parent or grandparent changed their will entirely, perhaps cutting one or more person entirely out of any inheritance, and there are questions about whether they knew what they were doing. Maybe they weren’t entirely sound of mind? Maybe someone pressured them into changing it?

There are all kinds of reasons why family members may object to how a loved one’s will is written.

And, coming so soon after a loss, a fight over the details of a last will and testament can quickly get nasty — nasty as only family infighting can get. So what do you do? Calling a lawyer is one fairly obvious step.

But hey, we all know lawyers cost money — often a lot of money. So what then? Contest the will yourself?

It’s an option, certainly, but unless you know what you’re doing it can be an endlessly frustrating, complicated and potentially drawn-out process that may end up being a battle in vain.

Enter a new book by St. John’s estate law specialist Lynne Butler.

Hot off the presses, “Contesting a will without a lawyer: The DIY guide for Canadians” is the 11th such book published by Butler. It’s published as part of the Self-counsel Press legal series.

Born in Newfoundland, Butler moved west with her family as a child. She studied law and was called to the Bar in Alberta in 1986. Most of her career she’s specialized in wills, trusts, estate planning and related legal matters. Six years ago a job with a larger firm saw her return to St. John’s and three years ago she struck out on her own, opening her own standalone law practice. She’s hosted her own radio show on estate law matters and puts out a regular blog, too. (www.estatelawcanada.blogspot.ca)

At first, the idea of a lawyer writing a book on how to do things without hiring a lawyer sounds a bit counterproductive. Surely the more books she sells, the fewer potential clients she may have?

“The first time I did one of those books, a lot of other lawyers criticized me … saying, ‘You know you’re taking business out of our pockets.’” She disagrees.

First off, this book isn’t really aimed at people who would otherwise hire a lawyer. There are lots of people out there who would not — or cannot — hire a lawyer.

“Either they don’t have access to (a lawyer) or they can’t afford it or they just don’t want to; they don’t want anyone else involved in their business.”

Cost is a big factor. In a 2016 survey, Canadian Lawyer magazine estimated the average legal costs for a one-week trial was $86,000. And that’s only for one of the parties. And it doesn’t include the cost of the prep work your lawyer will do for you before the trial.

Secondly, she has one or two people come to her looking to contest a will every week, so there’s already plenty of work out there.

It might surprise you that not all the wills that are contested involve huge sums of money.

“The one we finished the trial on Friday, really we’re talking about $150,000,” Butler said. “And that was nine years in the making. Nine years from the death of the mom until it finally finished in trial. They were through case management, they went through motions, they went through negotiations, they went through everything, and it took nine years. …

“Sometimes it’s not even about money at all. Sometimes it’s because someone is sort of bullying people or it’s about the things in the house that, you know, ‘Mom said I could have it and now you have it.’”

“The most common thing I hear is, ‘Somebody made Mom do this will. She didn’t know what she was doing and someone talked her into it.’ That’s the most common thing. Every week I hear it.”

Butler’s book isn’t so much a guide to success as a guide on how best to navigate the legal requirements as you build your case.

In fact, the first part spends a lot of time helping readers figure out if they actually have a case or not.

“I didn’t want people to think that they can contest a will just because they don’t like it. You had to go into ‘These are the scenarios and if it doesn’t fit into one of these you can’t go ahead because you have no grounds.’

“One of the things I did fairly thoroughly in the beginning of the book was to consider their motives, think about their expectations. Why are you considering doing this? If you’re just mad at people, get over it. That’s basically it. But if you have a legal ground and a real concern and you have proof, then you might have to go forward, although I do talk in the book about some alternatives you can do as well.”

Once you have done your research and figured out, “this is the legal ground on which I can contest the will,” the book will take you through the next steps: what documents do you need? What evidence do you need? What do you have to prove? Who’s on the other side?

“I try to go in and talk about these are the documents you need and here’s how you serve them on someone, and talk about the different levels of court and what you’ll do there before you get to trial …”

It’s complicated stuff and Butler said she’s tried to simplify it, giving easy-to-follow advice for people who feel they have to contest a will.

Her main desire is to help people who really need it.

“I know from talking to so many people that there are a lot of people that cannot afford to hire a lawyer but they’ve got a genuine legal issue. And if they don’t pursue the issue either they’re not going to inherit something or somebody is stealing something from their parents — there’s a real thing there that needs to be addressed and they have no way of doing it if they don’t do it themselves. …

“Can you imagine something that you felt in your heart was so unbelievably unfair but you couldn’t do anything about it because you couldn’t pay a lawyer? That’s just a bitterness you’ll have your whole life.”

As a journalist, I’ve had to read various legal documents over the years, from statements of claim to complex court decisions.

This book isn’t like those. It may use some of the same language, but it explains the legal terms and sets them out logically, giving readers different options to follow and outlining the requirements at each step.

I hope to God I never have to use this book. But if I do, it’s reassuring to know that, at the very least, there’s help along this particular legal path.