How to Contest or Challenge a Will
For many of us the loss of a family member is a very upsetting and stressful time, and we are not always thinking clearly during this emotional state. As a result, there are often times when an estate is distributed but some beneficiaries feel that it has not been done in accordance with the Will or that they have still missed out in some way. This isn’t uncommon and as any estate lawyer will tell you, a large part of their work involves resolving estate disputes between family members and other beneficiaries.
But if you are tempted to challenge a Will, be aware that there are specific reasons why you can challenge a Will. Although you may feel cheated, this may not alone be sufficient grounds for contesting a Will.
Some General Considerations
If you believe that you have not received a sufficient benefit under a Will and you fit certain criteria, you may be able to challenge a Will. Contesting a Will means applying to the court to have the Will, or parts of the Will, deemed invalid. While there may be a good reason you were left out, there may also be other possibilities.
Since contesting a Will is expensive and time-consuming, it is a good idea to get legal advice before you proceed. In addition, contesting a Will requires formal steps and procedures, and will only be successful if you can provide evidence to support your claim. Because the maker of the Will is deceased, any statements that you allege the deceased said, must be corroborated or confirmed by a witness. Depending on the jurisdiction, you may have to go to mediation and try to resolve the issues. If the case is not settled at mediation, it will then go to trial.
It is important to understand that if you are successful in having a court rule that the Will is not valid, a previous Will, if one exists, will determine how the estate will be dealt with. Therefore, it is a good idea to know what provisions were made in a prior Will before you begin. Furthermore, if there was no prior Will, the deceased will be considered to have died intestate. This means that the estate will be dealt with under provincial intestate laws. Again, it is important to know whether you are entitled to any of the assets under these laws, before you challenge the Will.
Insufficient grounds to Challenge a Will
Let us start with situations that do not give you grounds for challenging a Will.
You were promised something, but this promise isn’t reflected in the Will
Verbal promises don’t count for anything in estate law. If you had, over a number of years, been promised a certain item from an estate, but this promise is not in the written Will, then unfortunately, the promise counts for nothing. Only the written Will is accepted as the distribution plan for the estate.
The person wrote their own Will using software
This is a very common misconception. If you write your own Will on a sheet of paper, using a blank form Will kit, or online interactive software like the will writing service at LegalWills.ca, you still have a legal Last Will and Testament. As long as the document is written, and signed in the presence of two witnesses, it is a legal document. Subject to the same list of “grounds to challenge a Will” below.
You thought you were entitled to an inheritance
Some people have a legitimate claim on an estate, particularly a spouse, minor children and dependants. However, in most Canadian Provinces adult children do not have a claim on an estate (with BC being a notable exception), and certainly siblings and parents cannot automatically challenge a Will in which they have been disinherited.
The Will isn’t fair
This is a tricky one. Generally speaking there is no legal requirement to treat people fairly. Particularly in dividing an estate between children. So if your sibling has been left 60 percent of an estate and you have been left 40 percent of the estate. This alone is not reason to challenge a Will. However, there have been some exceptional cases in BC where the judge has re-written a Will to make bequests fairer.
Grounds for Challenging a Will
I heard that if I prepare a Will using a service like the one at LegalWills.ca it can be challenged. Is this true?
We hear this a lot, but it is nonsense. There are very specific reasons why a Will can be challenged, but writing your Will using an online interactive service is not one of them.
There are several reasons why a Will may be challenged. Although each case may be different, here are six general grounds:
- testamentary capacity;
- lack of valid execution;
- lack of knowledge and approval;
- Failure to provide adequate provision for a spouse or child;
- undue influence; and
- fraudulent wills and forged wills.
Lack of testamentary capacity
A Will may be invalidated if a testator does not have the requisite testamentary mental capacity to make a Will. Testamentary capacity is a legal test, not a medical test: however, the court will make its determination based on medical evidence. In order to have testamentary capacity the testator (person for whom the Will has been written) must:
- Understand he or she is making a Will that disposes of his or her property on death;
- Have knowledge of the property she or he owns and is disposing of;
- Have in mind persons who might ordinarily expect to inherit, such as family members; and
- Must be free of mental disorders such as delusions, dementia etc. that would affect his or her judgment.
In a Will dispute any of the above concerns would be the starting point for challenging a Will on the grounds of a lack of testamentary capacity.
Contrary to popular belief, the testator does not have to understand every word in their Will. They must simply understand the implications of their Will.
Lack of valid execution
This is the area that provides the most ammunition for legal professionals against the idea of writing your own Will. Lawyers will often say “never write your own Will, there are very specific steps that must be followed, which if done incorrectly, will invalidate your Will”.
This is true, but the steps are actually not that complicated.
To have a valid Will it must be:
- In writing;
- Signed by the testator in the presence of two attending witnesses;
- The two witnesses must Witness the will in the presence of the testator and in the presence of each other; and
- Must be eighteen or nineteen years or older (depending on the Province), unless the testator is in the armed forces.
In addition to the above rules, your witnesses cannot be beneficiaries in the Will, and in some Provinces they cannot be married to a beneficiary. Just to be safe, we recommend that the witnesses have absolutely nothing to do with the contents of the Will whatsoever.
However, your witnesses do not have to be a lawyer, police officer, notary or have any professional standing. Your witnesses can be friends, neighbours, co-workers, or any other adults who have nothing to gain from the contents of the Will.
Just get together with your two witnesses, tell them that you are signing your Will, and then sign the document and have them sign, all in each other’s presence.
Lack of knowledge and approval
A person must have knowledge of, and approve of, the content of their Will. This means that they must know that they are signing a Will, and approve of its contents. If the testator did not have knowledge and approval of the will’s contents, or if the testator did not understand the consequences of the wording, then a will may be invalid.
Factors a court may consider in determining whether the testator had knowledge and approval may include: whether the testator had physical difficulties regarding such things as vision or hearing, whether there was potentially a language barrier, whether the Will constitutes a significant change from previous Wills and the testator made unnatural dispositions, beneficiaries involved in the preparation of the Will or manipulated the testator. Other factors such as physical and emotional dependency and isolation form family and friends are also factors the court will consider.
No Provision for Dependant or Spouse
In most of Canada, there are laws that dependants must be taken care of, and spouses may have a claim to part of the estate. Therefore, if there was no provision made for dependants or the spouse, the Will may be challenged. Even adult children may challenge a Will if the division of property is considered to be unfair.
Specifically in British Columbia, spouses and children have the right to challenge the deceased’s Will on the basis that the deceased “failed to make adequate provision” for them. The courts have found that although there are no legal obligations to provide for adult children, there is a moral obligation if there are sufficient assets.
Conversely, if a spouse has not been adequately provided for, there is a legal obligation on the deceased to provide for a spouse and the Courts will be more likely to vary a Will in those circumstances. Other factors such as: the size of the estate, the length of the marriage, the financial needs of the spouse or child and competing moral claims will be considered.
This is the most common ground for challenging a Will. Where a person influences a testator by force, fear or in a manner that overbears and coerces the testator to change their Will there may be undue influence. It is not enough just to show that the testator was persuaded or merely influenced the testator. It must be such that it coerces the testator to overpower his or her own mind.
Factors that the courts will consider may include the vulnerability of the testator, the degree of pressure exerted and whether the new Will departs radically from previous Wills. The law in this area changed in 2014 due to new legislation and there was a significant shift in the burden of proof where there is an allegation of undue influence. The person alleged to have unduly influenced must now prove that they did not unduly influence the testator.
Fraudulent Wills and Forged Wills
You may be able to contest a Will if you believe it was forged or if fraud has taken place. For example, if Adam prepares a Will in Barbara’s name and forges Barbara’s signature so that her estate is left to him on her death, the Will would be invalid as a result of the forgery.
Alternatively, if Barbara intends to benefit Adam in her will but Carl lies to her by stating that Adam has stolen money, and then Barbara reacts by removing Adam from her will, the will may be invalid as a result of Carl’s fraud.
Again these situations can be difficult to prove but an experienced estate lawyer will be able to advise you on your legal options.
Consider the Cost
Another consideration is the cost to challenge a Will. In the past, the costs of all parties were automatically deducted from the estate, however, this has changed in many jurisdictions. If the court feels that the case was without merit, it may order you to pay not only your own costs, but to also pay the legal bill of the other parties.
If you are considering challenging a Will, an action must be brought within six months from the date of the grant of probate. If you are uncertain whether a limitation period has, or is about to, expire, then seek legal advice immediately.
Think before you challenge a Will
As we can see, there are a number of legal options available when one wants to challenge a Will and many beneficiaries are successful with their claims. However, before taking any legal action it is advisable to consider the implications before upsetting family members and taking on the burden of legal fees.
A lawyer can advise you about whether you should challenge a Will, and will make sure that the disputed property won’t be distributed under the Will until your claim is concluded or the time limit for bringing the claim has passed.
Write your own Will
Finally, if you are going through an struggle with an estate where you suspect something is not right, take some time to think about your own personal Last Will and Testament. Have you written your own Will yet? You should. Every adult needs a Will, and using our service at LegalWills.ca it can be written in about 20 minutes, for less that $40. We would at least encourage you to take a look by going to our Will writing service.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets including CTV, Global News, The Toronto Star, and other leading Canadian publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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