The specific grounds to challenge a Will in Canada

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.

Undue influence

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.

Tim Hewson

President and CEO at Canadian Legal Wills
Tim Hewson is one of the founders of LegalWills.ca.

He has over 19 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.
Anonymous

32 thoughts on “The specific grounds to challenge a Will in Canada

  1. Kevin Kevin says:

    I’m not sure if there are grounds to dispute a will in this case or not but I will ask. My father abandoned my mom, brother and I back in the early 70’s. My mother was never able to find him so we never received any type of child support from him. My mother died very young but after her death I was able to find out where my father was but by then I was in my early 30’s so no point trying to get any unpaid child support from him. My stepdad did adopt us in my late teens and apparently my mom had to go to court as my biological father could not be found and there was some legal stuff to work through but I was finally adopted by my stepdad. I have recently found out that my biological father is dying of brain cancer and I was curios if I could contest his will for years that he never paid a dime to support his sons as he should have? I know my mother never pursued going after him as she had found a new husband who loved her children and was supporting us but I thought maybe we could contest the will?

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Kevin, this is an interesting question. If I understand correctly, your father hasn’t died yet, so you don’t know if he has a Will, or if he does, what the contents are. I think you are in Manitoba. So when your father dies, if he doesn’t have a Will, and if he is not married, you could have a claim on his estate. But if he does have a Will, it would be a difficult challenge; you would have to show that you are a dependent. As with all questions like this, you would need to get an opinion from a lawyer who should be able to assess your chances of a successful challenge without charging you.

  2. Fred Bettger Fred Bettger says:

    My wife’s grandmother left the majority of her estate to her 5 grandchildren who were taken away from their father when they were very young and it has now been 2 1/2 years since her passing and still the will has not been carried out. The father feels that he deserves a bigger chunk of the pie and contested the will 6 months ago. Last month he looked for a better deal that all of the grandchildren agreed to but now he feels that more is necessary. My question is how long can this go on? You can’t possibly tell me that someone can hold a will hostage for years until they get what they want from it, there has to be some kind of limitation. I tell you what though, knowing now that writing out a will means nothing to anybody, what really is the point?

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Fred, thank you for the question, unfortunately the answer is not simple. You probably need legal advice from an estate lawyer because the situation is nuanced. If the father is just deliberately slowing things down, there are procedures for prohibiting him from making any further appeals. You cannot contest a Will just because you think you deserve a bigger slice of a pie. Situations like this are always more complicated than a paragraph, so we would recommend that you see a lawyer, and they will at least be able to explain where you stand. Sorry we cannot help you here.

  3. You said that a challenge of a will must be brought within 6 months. That is incorrect. Only dependent relief type of applications are restricted to that timeline. If you look at the various statutes of limitations, you will see that the usual 2-year limitation period applies in all other cases, with final limitations being as much as 15 years after the death of a testator.

    It is a fact that writing your own will DOES make it easier to challenge. This has nothing to do with it being an interactive service vs writing it down. It’s because a person who writes his or her own will is not receiving personalized legal advice on their specific situation. It’s unfortunate that the myth of a will being nothing but a fill-in-the-blanks exercise is still being perpetuated, given how many crappy wills are being fought over across the country.

    • Canadian Legal Wills Canadian Legal Wills says:

      Thank you for you comment Lynne. You run one of the most informative estate planning blogs in Canada, and we have a lot of respect for your knowledge and dedication to putting clear information into the hands of the public. We do follow your blog – it is a fantastic resource.
      Thank you for your clarification in your first point. We will correct the information in the article.
      The point we are making with your second point is that a Will cannot be challenged simply because it was written oneself. We agree, that using a blank form Will kit, is more likely to give you a “crappy Will” but of course, our service is nothing like one of those blank form kits. We really need people to understand that “writing your own Will” takes many, many different forms, some are much better than others. So yes, we agree that “writing your own Will using a blank form kit” could make your Will more likely to be challenged….but it’s the “use of the kit” that caused this, not the “writing it yourself”.
      I think you are also assuming that every Will writing lawyer takes the same care and diligence that you do. This is not what we are hearing from our customers. Many lawyers don’t even meet with their clients, the client is asked to complete a form and then come back in a few days to sign their Will. This is a reality that is shared by people who come to us, dissatisfied with the experience of working with a lawyer, not quite understanding what they paid the $800 for. So, like “write your own Will” services, there are good lawyers and not so good lawyers.

  4. Zelia Pimentel Zelia Pimentel says:

    My husband passed away recently and left everything to me on his will. He was very sick and taking pain killers and his daughter who didn’t speak to him in 7 years came back to his life when she found out he was going to die. Now she gave me a new will and on it she and her brother gets everything. How can I go about to contest it in the province of Quebec?

  5. Jan Jan says:

    I am unsure whether there are grounds for contesting my uncles will. He was never married and I received a copy of his last updated will but was not named in it. However I have confirmation from one of his beneficiaries that he had a previous will that named my father in his will, who is deceased but it would have stipulated it would be left to my fathers surviving stripes. I was also told the beneficiary has direct information that my uncle suffered from dementia, which was noted in his medical record and evident and progressed until his passing. The uncle that passed was moved closer to the beneficiaries to take care of him, which is when the will was updated. They both got in a disagreement and one took over care for my uncle from the other and then they stopped talking to each other. My concern is capacity, why he didn’t update his will years before as his siblings passed away 15 years + and only when he was being moved to be cared for was his will updated. For me it boils down to equality and fairness. If the system believes this to be fair so be it, however my issue is the will was updated to benefit his surviving siblings that moved him, I do not believe he had capacity to care for himself so that is why he was moved.The will was updated so they became sole benefactors or their heirs and these siblings are 85+ years old.

  6. Gail Chypyha Gail Chypyha says:

    My mother passed away 3 years ago. I saw her original Will. I was left the home my grandmother lived in. 8 months after my mom passed away, my brother told me to read the Will. I said I have already. He told me to read it
    In the new Will, it said both properties should be sold and sit I half between my brother and I. He renovated one property and so because I didn’t have any money to contribute to the renos, I only received 10,000. However, the home I am living I now is to be sold according to the new Will and my brother gets half. My mother and grandmother left the home to me and now my brother changed the Will and he gets 945,000. of the first home, minus Real Estate Fees and now he wants half of my home and I thought I would retire there. I do not make very much, and rent is too expensive. I am 61 yrs old. I spent all of my money on lawyers that were o his side..my lawyer agrees that he is looking put for my nest interest. I don’t like apartments. I worked very hard going to work a d looking after my mom, and now he is taking the house from under me. He did not ha e my mom’s signature when she had Parkinson’s until I poi ted out to the court. Now the Will has my mom’s new signature. I can’t afford the high pri e of rent. How ca a sibling be allowed to change a Will so he gets everything and I am left with nothing. But I did all the work looking after my mom and I helped my mom care for my grandmother when she had Colon Cancer. How is this fair? I have no money left for lawyers. My lawyer made me go e up my Executor. He is clearly on my brother’s side
    I would like to get another lawyer, but I have no money left. What can I do to remain in my home? He was charging me rent on top of property tax a d tbe house expenses. I cannot afford e erything. They want me out and my lawyer said he has the right to renovate and then I will be left with nothing because I do not have any money left. What can I do to protect myself please?
    Thank you
    Karen

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Karen, thank you for your comment. It is a very sad situation. I am continually amazed at how greedy people can become when an inheritance is at stake. We will contact you directly to your email address. We know a lawyer who may be able to help you. Best wishes.

  7. Hi my grandfather left an estate to me with stipulations when he was sick and on a lot of pain med. The stipulations that I think do not apply to me how do I go about contesting those stipulations. I am also named 100 percent beneficiary of the will

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Kaydee, It’s difficult to provide a useful answer on this blog, because we don’t know about the stipulations. It sounds like you want to receive the estate, but without the stipulations. If you prove that your grandfather was on pain medication and didn’t have capacity to prepare the Will, then the Will would have to be cancelled, not just particular clauses in it. This would mean that your grandfather’s estate would be divided according to intestate laws. As with all questions of this nature, we would recommend that you seek legal advice which would allow a lawyer to look at the detail of the Will and determine whether any of the stipulations are unreasonable.

  8. Natasha Caron Natasha Caron says:

    My grandmother died a month ago and in her will stated I would receive a ring valued at aprox. $7000 but the ring is apparently missing so I would receive nothing. I’m wondering if I should contest this or just leave it? Would it even be worth it to fight it? I have 21 days to decide.

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Natasha, thank you for your question. It’s a tricky one. If the ring has “gone” then there’s nothing to contest. If you have been left a specific object that is no longer part of the estate, then the bequests is said to be “adeemed“. It means that you don’t receive anything – not even the equivalent value from the estate.
      The question is…..”where is the ring?”. If it was left to you, and somebody else has taken it, then they have effectively stolen it from you. But if you have no idea where the ring is, then you are probably out of luck. But with all questions like this, you can of course ask for a legal opinion from a local lawyer. They may have a different view.

  9. Heather Landreville Heather Landreville says:

    Good day,
    I would like to know if I have grounds to challenge my fathers will. He passed Nov. 2017.
    He had 6 children. Our mother got angry with one of my brothers and had him removed from the will. Then she got upset with me and had me removed. Then she passed and my father handwrote on the will, my name and my brothers’s name. Also changed verbiage to say estate to be split 6 ways, as it was prior to our mother’s upset. Dated these notations and initialed them.
    Then Scotia bank as executors suggested two options to proceed to probate. The 2nd option, that all 6 children agreed to, was to divide estate equally amongst the 6 children.
    Then, just days ago, both my brother and myself received a lawyers letter, hired by one of my sisters and another brother both of whom have been named executors of the will, to say that my father’s notations were not signed by two witnesses making them invalid and therefore estate will be divided 4 ways and no longer 6.
    I would like to conclude that for the years after my mothers death, I was very involved in my fathers life. So it is perplexing, this change. Are you able to provide some quidance?
    Kind regards
    Heather

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Heather, it sounds as if Scotia Bank were trying to simply find an agreement between all of the children, but legally, a handwritten notation on a Will is not a legal amendment if it is not witnessed. The lawyer’s letter that you received is technically correct. So if two of your siblings are not agreeing to the Executor’s plan for an even split, then by the letter of the law they are correct. It’s a pity that they didn’t agree to the Executor’s proposal. Of course, we are not giving legal advice on this blog, so if you do want to pursue this, we would recommend that you hire a lawyer to represent you.

  10. Cindi Cindi says:

    My grandmother pressed away two years ago. Pre diseased by grandpa. She sold her home before going into retirement home. She was in the home less then two years and my aunt (executor)is saying that all the money from the (joint account) sale of the house 400000+ . Was spent on her care! Does she have to prove this and give joint account information to lawyer? She has dementia and changed her will less then a year before passing away. She passed away because she refused to continue eating

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Cindi, care homes can be expensive, but yes, the Executor usually has to provide a full assessment of the size of the estate to Canada Revenue Agency. If your mother is still alive, she can ask to see the Will. As a child of the deceased, it is a reasonable request to see the Will. If she is a beneficiary, then the Executor should be able to show her a full account of the contents of the estate. If you need a lawyer to represent you, please contact us at [email protected] and we can put you in touch with a lawyer who specializes in this type of dispute.

  11. Cass Cass says:

    Hi there, my grandfather recently died December 2018, my father pre deceased him January 2018. Before my fathers passing he was entitled to 25% of my grandfathers estate, after my fathers passing the Will was obviously altered. We have been recently notified that my mother nor I have provisions in the will. Just curious if we have the ability to contend the will. Thanks

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Cass, you probably don’t have a right to challenge the Will simply because you are a grandchild, but you may be able to challenge it if you felt that your grandfather was unduly influenced. We will email you directly to put you in touch with a lawyer who may be able to help.

  12. Lorie Lorie says:

    My father died in 2014 and left his entire estate $400,000.00 to his long term common law wife and nothing to his surviving 3 children. We did not contest the will as our step mother of over 40 years had said that when she passed away her estate would be devided equally between her 3 children and my fathers 3 children. She recently passed and we have now learned that the estate has been loft to only her 3 children. Can this be contested successfully.

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Lorie, and thank you for commenting. This is sadly one of the most common mistakes made in “blended family” situations. Exactly as you have described; everything goes to the spouse, but the spouse is not the biological parent of the children. The spouse continues with their life, and then passes away and everything is distributed according to their own Will, and the children are disinherited. Within our service we provide options for lifetime interest trusts that protect against this situation. I cannot comment on whether you have grounds for a successful challenge. Please contact our support team at [email protected] letting us know where you are located, and we may be able to put you in contact with a lawyer who can help, or at least let you know where you stand.

  13. Sherry Lee Sherry Lee says:

    My ex husband has been named executor and beneficiary on my fathers Will. We were divorced in September 2002 and the Will was signed in July 2012. My ex knew we were divorced but told my father otherwise of which we have no proof. Would this be considered fraud?

    • Tim Hewson Tim Hewson says:

      Hi Sherry, this is complicated and we would recommend that you seek legal advice. Please email us at [email protected] letting us know where you are located, and we may be able to set you up with a lawyer who deals with this kind of thing.

  14. Alma Alma says:

    Our Mom passed away 3 years ago, left 3 of our siblings as executors, 1 executor has the will and is refusing to give a copy to the other 2, also refusing to show a financial breakdown of monies, we all know there was a substantial amount in mom’s estate, to which we are all listed as dependents. We have contacted the lawyers office for a copy of the will and was told they no longer had it in their posession. We thought a will was suppose to be read by the lawyer when more then 1 person was listed as executors, is it standard procedure to hand a will over to 1 executor?

  15. Paul McQuade Paul McQuade says:

    Hello,

    Is there a time limit in challenging a will based on undue influence and possible fraud in Ontario?

    Best,

    Regards,
    Andrew

  16. Jennifer butcher Jennifer butcher says:

    I am in desperate need of advice on how I go about contesting a will of my mother’s she died exactly one year ago today and changed her will just months prior under the influence of someone that is a drug addict and alcoholic and hasn’t taken care of anything she is supposed to including avoiding creditors as well as giving away or selling all the personal property of my mother’s. Please advise me if I can just go to the courts myself to file something to get help asap.

    • legalwills legalwills says:

      Hi Jennifer, I am sorry about your situation, but this is one where we would definitely recommend that you find an estate planning lawyer to help you. They would know whether you have a legitimate claim, and would be able to write all of the appropriate letters you would need. It’s worth paying a few hundred dollars because you may well have a case for invalidating the Will. If so, you may be entitled to a share of the estate.

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