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Debra, Lawyer
Category: Canada Law
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Experience:  Lawyer
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In order to contest a will, do I hire a lawyer before Grant

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In order to contest a will, do I hire a lawyer before Grant of Probate or after. The Edmonton surrogate court will only allow photo copies of the will after Grant of Probate.
In order to contest the will, I will need medical records of the deceased. The issue is that my son who is disabled and on AISh is provided with a 20% life estate trust to be controlled by his sister and she is named the beneficiary of the trust. The balance of 80% goes to her. I have been the sole caregiver of my son who is 45 years old. The estate may be about $2,000,000. My son does not have a good relationship with his sister. I have an enduring power of attorney for my son. His father made the will late in his illness with brain cancer.
Thank you for your question.

Before I begin I want to explain a bit about how the site works.

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As well, please understand that as a careful lawyer I will always give you an honest answer even if the answer is sometimes not what you were hoping for.

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Are you saying that the father was not mentally competent to do a new Will when he did?

Are you alleging that your son's sister used undue pressure on her father to re-do the Will in her favour.
Customer: replied 4 years ago.

When he became ill, she went to live in Edmonton and visited with him at the hospice every day. She had mentioned to leave his estate to her and she would take care of her brother. I said that he could not leave his son out of his will. Late in his illness, a lawyer visited him at the hospice and they drew up this will without consulted us about his son's situation. I am concerned about the wording of this trust and it effect on AISH.

There is a lot of money at stake and 80:20 is not fair and in fact one might think the reverse would be fairer given you son is disabled.

It is vital that you see the wording of the Will because if the trust was not set up properly your son could lose his benefits until the money he is left has been used up.

So I don't think you can wait at all. I am very concerned that the sister will not provide a copy of the Will. That sets off alarm bells.

So retain a lawyer on behalf of your son now. The lawyer will send the sister a letter essentially threatening a lawsuit.

You can contact the Law Society and use their Lawyer Referral Service. You will be given the name of a lawyer and can consult with the lawyer and the first half hour will be free.

The number is:

1-800-661-1095 or
403-228-1722 in Calgary

Let me know if you need any further clarification.
Customer: replied 4 years ago.

The sister who is the executor has applied for Grant of Probate, You say I should hire a lawyer now before Probate is completed. As I mentioned, I can travel to Edmonton (from Calgary) and read the Probate file and make notes. I assume any lawyer would want the full copy of the will (only available after Probate), and the medical information relative to the time the will was made. Can this medical history be obtained? The executor is well aware of my intention to object to this will and that is why she is not communicating with me.

The Will is available to the public after probate.

But it is not necessarily not available to you.

A Court would undoubtedly order that she provide you with a copy of the Will and if your lawyer demands a copy it would be ridiculous for her or the estate lawyer not to provide it.

That is why I am saying you don't have to wait and likely should not.

You will not be entitled to the medical records. The sister can get them. And she can give permission to get them. But if she will not you will need a Court Order and that will take time which is also why I am suggesting not to wait.
Customer: replied 4 years ago.

For you information, according to the surrogate clerk the contents of the application which I assume include a copy of the will is available for viewing before probate is granted. Nevertheless, thank you for your advice.

It is available once the application has been started and a Court file is open.

It is not available to the public before then.

It has to be in the Court file to become part of the public record.

So as soon as the application is filed with the court anyone can see it.

But that could be months.
Customer: replied 4 years ago.

The application has been filed but my son only received one page of the will. That is my first issue, in that can she only send one page of the will to a beneficiary which is non residual. I will travel to Edmonton to view the file for inaccuracies before engaging a lawyer. It is also possible that if an objection to a will is accepted that the estate will pay the legal fees?

The estate will pay the estate's lawyer and if you win the estate will pay a portion of your son's legal fees as well.
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