As estate planning lawyers, we constantly orbit the estate litigation galaxy, navigating to keep our clients’ estates from being pulled into the Black Hole of court. This blog is a guide for both estate planning lawyers and their clients to stay in “safe orbit” and navigate smartly around some of the most common estate litigation in the galaxy, with a nod to the late 1970s comedy science-fiction series “A Hitchhiker’s Guide to the Galaxy.”
In the series, the main character comes to learn that the Earth was actually a giant supercomputer, created by another supercomputer, “Deep Thought.” In the age of AI, the irony is rich indeed! And like our galaxy, the options and variations of estate litigation can seem endless.
Chapter 1 – The Will Challenge
The most common form of estate litigation is a challenge to the validity of the estate planning documents, and most notably, the Will. The challenge is based on the allegation that the testator, at the time of execution, lacked capacity, and/or was unduly influenced, which if found by the court, results in the Will being void ab initio.
During a trial or application hearing involving a Will challenge, the hearing judge relies on and places significant weight on the evidence of the solicitor who drafted the Will.
It is critical that estate planning lawyers take notes during all meetings with their client and the testator, and particularly when taking instructions in relation to the preparation of the Will.
This responsibility is heightened when there are concerns about the testator’s capacity, or the testator is dividing their estate unequally between family members, or the testator is making material changes from a previous Will. If an estate planning lawyer has concerns about the testator’s capacity, they should consider asking the testator to voluntarily undergo a capacity assessment prior to executing the Will.
Finally, the estate planning lawyer should meet with the testator on their own and not with any other family members—and particularly beneficiaries—when taking instructions and executing [signing] the Will itself.
Estate planning lawyers may also consider including an anti-litigation (aka in terrorem) clause in the Will, albeit limited due to public policy concerns, which provides that if a beneficiary challenges the validity of the Will and is ultimately unsuccessful, they forfeit their inheritance.
If an estate planning lawyer fails to take detailed notes, they may even be held personally liable for negligence, the damages of which may (at least) include the legal costs in relation to the corresponding Will challenge.
Chapter 2 – Equalization and Support Claims
Under the Family Law Act (“FLA”), a surviving married spouse can make an election after the death of their spouse to receive an equalization of net family property instead of what inheritance they may be entitled to, if any, under the deceased spouse’s Will.
Further, both married and common law spouses, as well as children and certain other family members, any of whom were financially supported by the testator immediately before his or her death or for whom the testator had a legal obligation to provide support during their lifetime, if not adequately provided for under the testator’s Will, can make a claim for dependant support under the Succession Law Reform Act (“SLRA”).
Claims under the FLA and SLRA are not mutually exclusive.
In light of the above, estate planning lawyers need to impress upon clients the need to carefully consider how they wish to treat their spouse and/or children and whether they are adequately provided for.
Chapter 3 – The Presumption of Resulting Trust
It is common for a parent, and particularly an elderly parent, to add a child to a bank account as a joint account holder for convenience purposes as the child may be assisting the parent with the management of their property.
There is a presumption at law that the child, who did not contribute funds to the account, is holding their interest in trust for the parent. On the parent’s death, the child’s interest in the account is said to result back into the deceased parent’s estate.
Estate planning lawyers should speak with their clients about this “presumption of resulting trust,” and executing a declaration of trust including a provision in their will which confirms that any joint bank account holder was added for convenience purposes and is not to inherit the balance of the account as a gift on the death of the parent, and which instead should form part of the client’s estate.
Chapter 4 – Family Residences and Cottages
It is common for individuals to leave a family residence such as a cottage under their Will, so that it can be passed down to the next generation and kept in the “family.” The issue is that there may be a dispute between inheriting family members as to what happens with the residence.
Estate planning lawyers should speak with their clients about their intention in respect to any such family residence or cottage and about including a provision(s) in their Will such as an option for one or more children who wish to purchase the residence or cottage, or if multiple children are interested in owning the residence or cottage, encouraging them enter into a co-ownership agreement, if one or more children wish to own the residence or cottage, an orderly process to determine ownership.
If the Will does not provide such a mechanism for the distribution of the family residence or cottage, it increases the risk of estate litigation. Frequently, these disputes result in the property being sold.
Chapter 5 – Private Businesses
If an individual owns a private business, and particularly an operating business, an estate planning lawyer should speak with them about which family members are involved in the business and which ones are not.
If there are family members who are not involved, it may not make sense for them to receive shares of the business as a part of their inheritance, and instead consideration can be how best to provide for their other assets. Shareholders’ agreements or buy/sell agreements may also need to be updated, which should coordinate with the Will, and the funding of any redemption or retraction of shares to be inherited by any such family member in certain events, such as death or disability.
One method to fund the redemption or retraction of certain shares may be for the business to purchase corporate life insurance.
Chapter 6 – Personal Contents
If an individual has personal contents of significant value, including intrinsic value, such as artwork, high-value jewelry, car collections, and the like, and intends on leaving them to family members in their Will, estate planning lawyers should speak with them about including a provision under the Will to address the distribution of these items, such as an alternating selection process (i.e., round robin), where each inheriting family member takes turns selecting, say, a piece of artwork, until all artwork is allotted.
Chapter 7– Loans and Advances Made During Lifetime
It is common for parents to make loans and advances to their adult children during their lifetime, such as towards the purchase of a child’s home, which unfortunately, can result in estate litigation following the death of the parent, if the adult children believe that they were not all treated equally.
Estate planning lawyers should speak with their clients about recording any loans or advances made to a child during their lifetime, and consider including a hotchpot clause in their Will, which provides that any such loans or advances will be set off against that child’s respective distributive share of the estate.
Chapter 8 – Executor and Trustee Compensation
Estate planning lawyers should speak with their clients about appointing multiple executors and trustees (as opposed to one) and including provisions in the Will relating to the minimum appointment of trustees and the majority of the trustees being able to make a decision if there is a disagreement.
Further, consideration should be given to including an express provision for executor and trustee compensation, as opposed to them relying on the relevant tariff [standard percentage] amount.
If an individual’s Will does not include such a provision for compensation which provides for the amount of compensation to be received by a trustee, there is a risk of expensive litigation between the trustees and the beneficiaries of the estate, in relation to the amount of compensation that is reasonable and should be paid to the trustees.
42 is Not the Answer, But Proper Estate Planning is!
At the end of the Hitchhikers series, the supercomputer “Deep Thought” does a lot of number-crunching to answer the “Ultimate Question of Life, the Universe, and Everything.” After eons of calculations, the hilarious answer was given merely as: “42.”
Navigating the estate litigation galaxy doesn’t have to feel like a perilous voyage through uncharted space.
While estate litigation can drain financial resources and fracture family relationships, proactive planning and thoughtful drafting are your best defense. By anticipating common pitfalls—from resulting trusts and spousal elections to messy family business structures and ambiguous loans—estate planning lawyers can build robust, friction-resistant estate plans.
Ultimately, a well-crafted Will is more than just a legal instrument; it is a clear, definitive roadmap designed to guide clients and families of estate planning lawyers safely home, long after the galactic dust has settled.
For Further Reading
Check out some of our firm’s previous blogs on related topics:
The Tale of Spouses and the Principal Residence Exemption (PRE) Conundrum – July 8, 2026
Dependant’s Relief Claims: A Tug-of-War between Testamentary Freedom and Familial Obligation – December 9, 2025
Can You Disinherit Your Child? A Survey of Testamentary Freedom Across Canada – January 24, 2023
Integrating Life Insurance in the Estate Plan: The Need for an Holistic Approach – August 23, 2017
— Josh Cohen