I was told that if I don’t create a Will through a lawyer, somebody will end up challenging the Will. Is that true?
This is one of the most common misconceptions we hear related to preparing one’s own Will. If you prepare a Will through a lawyer’s office for $600 it won’t be challenged, but it you write a Will yourself, or through a service like LegalWills.ca it is bound to be contested. The reality is that any Will can be contested, but challenging a Will can only be successful under one of eight conditions.
The last of these is a recent addition to our list after judgements coming out of British Columbia, and then just last week, a judgement from the Ontario courts which has opened the door to a whole new class of people who could be challenging a Will.
1. Challenging a Will because it was not executed correctly
This is the category of challenge most closely associated with preparing one’s own Will. The document must be signed in the presence of two witnesses who have nothing to gain from the contents of the Will. The most obvious disqualified witness is a beneficiary, but the spouse of a beneficiary is also an unacceptable witness. Many people think that a witness must be a lawyer, a notary or a person of professional standing, but in fact, any disinterested adult can witness the signing; friends, neighbours and co-workers are perfectly fine to serve as witnesses to the signing. But all three people must be present in the room together, there must be a declaration that the Will is being signed, and then each person must sign in each other’s presence. Having said that, there was a recent case in Australia where the witnesses were beneficiaries and signed the document on a different day to the testator, and the Will was still accepted as a valid Will – we wouldn’t recommend testing this though. As long as a Will is signed in the presence of two adults who have nothing to gain from the contents of the Will, nobody can be challenging a Will based on improper execution.
2. Challenging a Will because of a mistake
This is the most likely cause for a challenge to a do-it-yourself blank form Will kit. There was extensive coverage last year of a senior in Florida who attempted to list all of her assets in the Will and then leave these items to her brother. Unfortunately, she didn’t realize that a Will needs a residual clause to cover everything in the estate that has not explicitly been listed. In fact, at LegalWills.ca we discourage people from trying to list their assets in their Will for two reasons, firstly, your Will is going to be a public document once it goes through probate, and secondly, you don’t know when the Will is going to come into effect – next week, or fifty years from now, and you don’t want to have to update your Will every time an asset is changed. Most jurisdictions now have laws in place that try to interpret the true intentions of the testator, so we are likely so see fewer challenges to a Will based on an obvious mistake, like the mis-spelling of a name for example. The service at LegalWills.ca also structures the service so that obvious mistakes cannot be made. But it is a good idea to read through your Will to make sure that there is nothing ambiguous and all scenarios have been covered.
3. Challenging a Will on the basis of fraud
This covers the variety of situations where the Will is not genuine. A signature could have been forged, pages swapped out or removed, white-out and photocopies used. It also covers situations where the testator may have updated their Will based on wrong information that they received. Challenging a Will because of fraud can be successful if there is any evidence that somebody associated with the Will has acted dishonestly.
4. Challenging a Will based on capacity
This is one of the most common reasons for challenging a Will, as people often delay writing their Will until they are in their senior years. We always remind people that Wills are to be written when you are fit and healthy, and updated throughout your life. Leaving the writing of your Will until you think you are close to death is opening your estate up to a challenge. Age alone is not a factor, but mental capacity can often be associated with age and updating the Will in your nineties will open the door to somebody challenging a Will. Capacity to prepare your Will means that you understand that you have indeed prepared your Will, you understand the appointments within the Will, and the distribution of your property. You must understand the implications of what you have written and signed.
5. Challenging a Will based on unusual family circumstances
We’ve included this one because many celebrity Will challenges fall into this category. For example, James Brown’s Will is being challenged because it’s unclear as to whether and when he got married.
There are countless examples of children being disowned or genuinely unknown to the testator. Gary Coleman from the T.V. show Different Strokes was also married, secretly divorced but continued to live with his estranged spouse in a common law relationship. Situations like this will almost always lead to somebody challenging a Will.
6. Challenging a Will based on undue influence
Undue influence goes beyond simply standing over the testator and making them sign something that they are not comfortable signing. It can extend to more insidious influences happening over a period of time. This case determined that although the 81 year old testator had mental capacity, one daughter managed to convince the testator to change her Will over the course of a year so that her final Will was a complete shift in intentions from all of her previous Wills. The judgement made this distinction “One may request, importune, or entreat another to create a favorable dispositive instrument, but unless the importunities or entreaties are shown to be so excessive as to subver the will of the maker, they will not taint the validity of the instrument.” In other words, trying to persuade somebody to change their Will does not alone mean that undue influence was exerted, but if the persuasion is excessive, it may result in somebody challenging a Will successfully.
7. Dependents challenging a Will
There is less fuzziness in the requirement that dependents must be taken care of within your Will. You cannot disinherit your spouse, minor children, or others who can demonstrate a dependency on you. The amount that must be left to dependents varies from Province to Province, but in summary, if you are planning to disinherit your spouse, your estate should probably expect to see a dependent challenging a Will.
A judgement in 2010 that overturned a BC Will disinheriting a man’s daughters in favour of his only son declared that “The provisions of this Will were not those of a judicious testator acting in accordance with societies’ reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards”.
8. Challenging a Will because something in the Will is not legal
A recent judgement in Ontario has changed the law. A man disinherited one of his daughters, and although there was no mention of it in the Will, it was assumed that the disinheritance was because the daughter had a child of a white man (the family were black). The judge overturned the Will because she felt is violated public policy. The judgement has confused most of the legal profession,
“I actually think it’s astounding,” said Western University law professor Adam Parachin. “This decision has no basis in established law and that’s not hyperbole.I think it is an absolutely stunning development in estate law,”
“Testamentary freedom” — or the right to dispose of your property as you see fit — is strongly enshrined in our law, he explained. There was no legal requirement for the 71-year-old father to gift anything to his adult daughter and his motivation for not doing so shouldn’t be any concern of the court, he said.
The law says the provisions of a will must be upheld unless they violate public policy. But it is not always clear on where that line is drawn. Challenging a Will that includes a bequest to a terrorist organization is probably going to be successful, but there is a very fuzzy grey zone.
In 2010, a Nova Scotian judge overturned the Will of a church goer who wished his house sold only to an Anglican or Presbyterian after he died. The judge determined that the Will violated the Human Rights Act that prohibits discrimination on the basis of religion in the purchase or sale of property.
How can you avoid somebody challenging a Will
Writing your Will through a service like LegalWills.ca does not automatically mean that your Will is more likely to face a challenge. You must of course sign the document in the presence of two independent witnesses, not a beneficiary, nor the spouse of a beneficiary. Make sure that you prepare your Will at an age where your capacity cannot be questioned, do not wait until you think you are about to die before you prepare your Will.
If you are planning to disinherit dependents, or if you have a strange family situation, or you want to do something controversial within your Will, then we would recommend that you seek legal advice. But even with legal advice, your Will can probably still be successfully challenged under these cicumstances.
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.
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