A Will is a legal document that outlines the instructions of the testator (person signing the Will) on how their assets should be distributed after their death. In some circumstances, it may be appropriate to challenge a Will, most commonly, when the Will has not made any provisions for a dependent or when there is a dispute to the validity of the Will.
Litigating Wills takes time and can be costly. If you are contemplating a Will challenge, you should consult a Wills and Estates lawyer in Brampton to determine if the case has merit before proceeding.
Who Can Contest a Will?
In Ontario, anyone with a financial interest in an estate may file a Notice of Objection with the requisite court, prior to Probate being obtained. A Notice of Objection is a notice to the registrar of the Court which allows the objector (person filing the objection) to receive notification if any action is taken in relation to the Will of a deceased. The notice of Objection must set out the interest the objector has in the estate and the grounds that are being relied upon to contest the Will.
On What Grounds Can You Contest a Will?
There are several grounds under which you can challenge a Will. The most common reasons are:
- Lack of Testamentary Capacity,
- Lack of Approval,
- Undue Influence,
- Non-compliance with the Succession Law Reform Act (SLRA).
The onus of proof of testamentary capacity belongs to the person presenting the Will. This person must prove, on a balance of probabilities, that the deceased was of sound mind when the Will was executed. In the case of undue influence, the onus of proof belongs the person alleging it.
Lack of Testamentary Capacity
A person must be of sound mind and memory or testamentary capacity to create or change a Will. The person must understand what signing a Will means and the impact it will have on their estate and their family. If the testator lacked the mental capacity to create the Will, a contester may successfully challenge the document and have it set aside by the court.
Lack of Approval
A lack of approval or a lack of knowledge of the contents of the Will can also result in a challenge of the validity of the Will. If a testator is unable to ascertain what assets they have or the value of their assets, they may not be in a position to give instructions regarding the disposition of their estate. Accordingly, it is important that a testator be fully cognizant of the contents of their estate and the intended disposition.
For undue influence to occur, the testator must be pressured or coerced to make or amend their Will. For instance, if a person uses blackmail to force a testator to change their Will to benefit the blackmailer. It is difficult to prove undue influence since the testator’s reasoning for creating the will is usually lost after their passing.
If a Will’s contents are unclear and it is difficult to determine the testator’s wishes, a person may challenge the validity of a will on the basis of ambiguity.
Non-Compliance with the Succession Law Reform Act (SLRA)
Ontario has strict rules regarding the drafting of Wills. The SLRA states that a Will must be in writing, signed by the testator in the presence of two or more witnesses, and two or more witnesses must sign in the presence of the testator. The witnesses cannot be beneficiaries of the estate. Failure to adhere to these rules can result in the court setting aside a Will.
Fraud and Forgery
The submission of falsified documents and documents containing falsified signatures are grounds for contesting a Will. Additionally, if someone provided the testator with false information that caused that testator to change their Will to benefit that person, the Will may be contested.
Where Can I Find an Experienced Estate Administration Lawyer?
Navigating the estate litigation process to defend or contest a Will’s validity can be difficult, especially given the complexity of the process. If you require representation, consult GS Brar Law’s estate administration lawyer.