Legal Question in Wills and Trusts in Canada
Monies received before death
14 years ago, my mother gave me money to buy a house. She told me that I didn't have to pay it back. She died a month ago with a new will made 10 years ago naming my brother as excecutor and states that I owe the estate the amount given to me at a high interest rate. There is no signed agreement between her and I, just a cancelled cheque. Do I have a leg to stand on if I contest the will?
Hope you can help me. Thank you
1 Answer from Attorneys
Re: Monies received before death
Whether the funds were a loan or a gift is a matter of evidence. The onus will likely be on you to prove the money was a gift, because in most circumstances, the law does not presume a gift. Therefore you have to provide some plausible evidence to convince the Court that the money was a gift. Any witnesses?
Alternatively, you may have a limitation defence. Check with a local lawyer about your provincial limitations statute. Depending on the alleged terms of the loan it may be that the limitation period has expired and the estate cannot enforce collection of the loan.
A third issue is whether, if the loan is found to be legitimate but uncollectable because of the limitation period having expired, whether it will be deemed an advance against your inheritance.
If the amount is significant, it is worth obtaining an opinion from a local solicitor.
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