Originally published: February 11, 2015 | Last updated: November 6, 2024
TL;DR: A Will can be challenged in Canada on eight main grounds: improper execution, mistakes, fraud, lack of mental capacity, unusual family circumstances, undue influence, inadequate provision for dependants, and illegal provisions. The best defence against a challenge is a properly prepared Will that follows all provincial requirements, ideally created while the testator is clearly of sound mind.
Yes. Canadian courts allow people to challenge Last Will and Testament documents but the process to successfully challenge a Will becomes costly and difficult to achieve. The courts respect testators’ right to distribute their property according to their wishes but specific legal requirements exist which enable challenges to Wills. The knowledge about these grounds will assist you to create a Will which will stand up against legal challenges at its highest possible level. The Canadian legal system recognizes eight primary reasons which enable people to challenge a Will through legal proceedings.
Yes. A Last Will and Testament can be contested in Canadian courts, though successfully overturning a Will is difficult and expensive. Courts generally respect a testator’s right to distribute their estate as they see fit, but there are specific legal grounds on which a Will can be challenged. Understanding these grounds helps you write a Will that is as contest-proof as possible. Here are the eight most common bases for challenging a Will in Canada.
1. The Will Was Not Properly Executed
Every Canadian province requires specific formalities for a Will to be valid. In most provinces, a formal Will must be in writing, signed by the testator in the presence of two adult witnesses, who then also sign the document. If any of these requirements are not met, for example, if only one witness was present, or if the testator did not sign every page where required, the Will can be declared invalid. This is the most straightforward ground for challenging a Will and the easiest to avoid by using a proper Will-writing service like LegalWills.ca that provides clear signing instructions.
Every Canadian province requires specific formalities for a Will to be valid. A formal Will needs to exist as a written document which the testator must sign in front of two adult witnesses who must then add their signatures to the document. The Will becomes invalid when any of these requirements fail to meet the standards because there was only one witness present or because the testator failed to sign every page which needed his signature. The process for challenging a Will becomes simple because it stands as the primary reason for Will challenges so you should select LegalWills.ca as your Will-writing service to receive their detailed signing directions.
If a Will contains an error, such as an incorrect name, wrong address for a beneficiary, or an ambiguous description of an asset, it may be challenged. Courts can sometimes “rectify” a Will to correct obvious mistakes, but this requires a court application and legal fees. In more serious cases, a mistake may render a specific provision or the entire Will unenforceable. Carefully reviewing your Will before signing, and using a guided service that validates your entries, significantly reduces the risk of errors.
2. The Will Contains a Mistake
A Will can be invalidated if it was created as a result of fraud. This includes situations where someone forged the testator’s signature, tricked the testator into signing a document they did not understand was a Will, or deliberately misrepresented facts that influenced the Will’s contents (for example, lying about a family member’s behaviour to get them disinherited). Proving fraud requires clear evidence, but if established, it can void the entire Will or specific provisions.
People who want to challenge a Will should look for errors which include wrong beneficiary names and incorrect beneficiary locations and insufficient details about property assets. Courts will sometimes fix Will errors through rectification but this process needs people to file court applications for legal service payments. The presence of major errors in a case will result in either the particular Will section or the full Will document becoming unenforceable. The process of reviewing your Will before signing becomes safer when you use a guided service which verifies your document entries.
To create a valid Will, the testator must have “testamentary capacity”, they must understand what a Will is, know the general nature and extent of their assets, understand who would naturally expect to benefit from their estate, and appreciate how the Will distributes their property. Challenges based on mental capacity often arise when a Will is made late in life, particularly if the testator had dementia, Alzheimer’s disease, or was under the influence of medication. This is one of the most commonly litigated grounds. Creating your Will while you are clearly healthy and of sound mind is the strongest defence.
3. The Will Was Created Through Fraud
Certain family situations create grounds for a Will challenge. If a testator was in a new relationship late in life and suddenly changed their Will to exclude long-standing family members, this raises red flags. Similarly, if a testator was estranged from a child and disinherited them without explanation, the excluded child may challenge the Will. Blended families, where the testator has children from multiple relationships, are particularly prone to disputes. Courts examine whether the Will’s provisions are reasonable given the family circumstances. Celebrity estates frequently illustrate this problem; contested Wills often involve complex family dynamics and late-in-life changes.
A Will becomes invalid when someone creates it through fraudulent activities. The situation includes cases where someone forged the testator’s signature or they fooled the testator into signing a document which the testator did not realize was a Will or they intentionally provided false information which affected the Will’s content (such as making false statements about a family member’s behavior to cause their disinheritance). The process of proving fraud needs strong evidence but this discovery will make the entire Will or its specific sections become invalid.
Undue influence occurs when someone in a position of power or trust pressures the testator into writing a Will that benefits them unfairly. This often involves a caregiver, a new spouse, or a family member who controls the testator’s access to information or other people. The key legal question is whether the testator’s free will was overborne, whether the Will reflects the testator’s genuine wishes or someone else’s. Signs of undue influence include sudden unexplained changes to a Will, isolation of the testator from other family members, and a new beneficiary who was heavily involved in the Will-writing process.
4. The Testator Lacked Mental Capacity
Most Canadian provinces have legislation that allows dependants to challenge a Will if they were not adequately provided for. A “dependant” typically includes a spouse, minor children, and in some provinces, adult children or other family members who were financially dependent on the testator. Even if the testator deliberately excluded a dependant, the court can override the Will and order support from the estate. The specific rules vary significantly by province; in British Columbia, the Wills, Estates and Succession Act is particularly broad in allowing children to challenge a parent’s Will. Understanding your province’s dependant relief laws is essential when planning your estate, especially if you intend to distribute assets unevenly among family members.
A testator needs to prove “testamentary capacity” to create a valid Will because they must understand Will documents and possess knowledge about their asset value and distribution patterns and they need to recognize which people would receive their estate naturally. People create mental capacity challenges when they make Wills during their final years because they might have had dementia or Alzheimer’s disease or took medication that affected their judgment. This is one of the most commonly litigated grounds. Creating your Will while you are clearly healthy and of sound mind is the strongest defence.
A Will cannot include provisions that are illegal, contrary to public policy, or impossible to carry out. For example, a condition that a beneficiary must divorce their spouse, change their religion, or engage in illegal activity to receive their inheritance would likely be struck down. Conditions that are discriminatory on prohibited grounds may also be unenforceable. If only specific provisions are illegal, the court may sever those provisions while upholding the rest of the Will.
5. Unusual Family Circumstances
While no Will is completely immune from challenge, you can significantly reduce the risk:
- Use a proper Will service: Ensure your Will meets all provincial execution requirements. Services like LegalWills.ca handle formatting and provide clear signing instructions.
- Write your Will while healthy: Creating your Will when you are clearly of sound mind eliminates capacity challenges.
- Update regularly: An up-to-date Will that reflects your current circumstances is harder to challenge than an old one.
- Provide for dependants: Even if you wish to leave more to some family members than others, ensure legal dependants receive reasonable provision.
- Act independently: Make your Will decisions without anyone else present or influencing you, to prevent claims of undue influence.
- Include an explanation: If your Will contains unusual provisions (such as disinheriting a child), consider including a brief explanation of your reasons.
Tim Hewson is one of the founders of LegalWills.ca.
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.
