What can I do if someone died and I do not agree with what I’m getting from the estate?
Sometimes, when a loved one dies, they may not leave you anything or as much as you think they should have. Or maybe they died without a will and you do not have the right to get anything under the .
In these situations, you might be able to:
- make a claim against their , or
- challenge the will.
Make a claim
There are 2 main kinds of claims that you can make against the estate of someone who died.
Dependant's support claim
A dependant's support claim means asking the court for support from the estate because you were dependent on the person who died.
A dependant is a person who:
- was supported financially by the person who died, or
- the law says must be supported by the person who died.
A dependant can be your or partner, married partner you're from, divorced partner, child, stepchild, grandchild, parent, grandparent, brother, or sister, or any sibling.
Equalization claim
If you were legally married to the person when they died, you can decide if you want to take what you get from:
- your partner's will or the intestacy rules if they did not have a will, or
- an equalization payment.
An equalization payment is money one married partner can sometimes get from the other partner after they separate, or one partner dies.
With an , both partners share the amount by which their property increased in value while they were married.
Common-law partners cannot make an equalization claim.
Challenge the will
You might be able to challenge the will if you think it's not valid.
A will may not be valid for many reasons. For example, a will may not be valid if when making the will, the person who died was:
- not
- under too much pressure to sign the will, for example, from a family member
The will might also not be valid if the person who died did not follow the rules for making a will.
But sometimes, even if the person did not follow the rules, a court might decide that the will is valid. This might happen if the court believes that the will still expresses what the person really wanted.
If a court decides the will is not valid, then the estate is not divided according to the will. It's divided using the intestacy rules.
Get legal help
You have to go to court to make a claim or challenge a will. This can cost a lot of money and take a long time. And it can be very complicated if you decide to make more than one type of claim.
It's a good idea to get help from an estates lawyer.
If your partner dies and you're thinking of making an equalization payment, it can be difficult to know:
- if you have the right to it
- how much you can get from it
You may also need help to compare the amount you get from an equalization payment to what you can get under the will or from the intestacy rules. So, it's important to talk to a lawyer as soon as you can after your partner dies to figure out which option is best for you.
A lawyer can discuss your options with you, tell you if they think you can be successful, and help you through the process. They can also make sure that you do not miss the deadlines to make these claims.
If you start a claim and it's not successful, a judge may order you to pay some or all of the estate's legal costs.
