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What can I do if someone died and I don't agree with what I'm getting from the estate?

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What can I do if someone died and I don't agree with what I'm getting from the estate?
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The Canadian Bar Association (CBA)
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What can I do if someone died and I don't agree with what I'm getting from the estate?
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Reviewed: 
October 31, 2019
Answer

If someone died and didn't leave you anything or as much as you think they should have, or if you're not entitled to anything under the intestacy rules, you might be able to:

  • make a claim against their estate, or
  • challenge the will.

Make a claim

There are 2 main kinds of claims that can be made 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
  • A person the law says must be supported by the person who died.

This includes a married or common-law partner, child, stepchild, grandchild, parent, grandparent, brother, or sister. It can even include a divorced ex-spouse if you were still being supported by the person when they died.

You might also be able to make this claim if the person died without a will and you're a common-law partner or stepchild who was not legally adopted. This is because the intestacy rules do not give anything to a common-law partner, or to stepchildren who were not legally adopted.

Equalization claim

If you were legally married to the person when they died, or separated but not divorced, you can make an election. This means you decide whether you want to:

  • take what you're entitled to under the will, or the intestacy rules if they didn't have a will, or
  • get an equalization payment

An equalization payment is money one married spouse can sometimes get from the other spouse based on how much property increased in value while you were married. Step 2 has more information on this.

Common-law partners and divorced ex-spouses can't make an equalization claim.

Challenge the will

You might be able to challenge the will if you think it isn't valid. A will may not be valid for many reasons. For example, it won't be valid if when making the will, the person who died:

  • wasn't mentally capable,
  • was under too much pressure to sign the will, for example from a family member, or
  • didn't follow the rules for making a will.

If a court decides the will isn't valid, then the estate is not divided according to the will. Instead, it is 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. A lawyer can discuss your options with you, tell you if they think you can be successful, and help you through the process. A lawyer can also make sure that you don't miss deadlines to make any of these claims.

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