Contesting a Will

Contesting a will requires prudent legal advice from an estate lawyer

If you are contesting a will or defending a will challenge you should get advice from an estate lawyer. The estate litigation process can be very costly and time-consuming. It can also be an emotionally challenging experience. Will challenges usually take place after the death of a family member.  One of the main challenges when contesting a will is that it is impossible to know what the last wishes of the deceased person were.

The person cannot testify what his or her wishes were at the time the will was made. In these situations, you must retain legal counsel to ensure your rights as a beneficiary or executor of the will are protected. Failing to consult an estate lawyer may result in costly and protracted estate litigation. This will happen as a result of some beneficiaries moving to invalidate the will in question.

There are many circumstances when contesting a will may be appropriate

There are many circumstances in estate litigation when contesting a will may be the appropriate course of action. These circumstances may arise for various reasons. Some of these follow below:

1. Unequal treatment of beneficiaries

If a beneficiary is expecting to receive something from the testator but receives significantly less, he or she may challenge the validity of the will. The disgruntled beneficiary may commence contesting a will in order to invalidate it. The unequal treatment of beneficiaries will likely resulted in costly estate litigation, especially if the estate in questions involves many assets. You should consult an estate lawyer to protect your rights. Read more here.

2. Out-of-date estate plan

If the will was created a long time ago, it is likely that a will challenge will follow. There may be new children or grandchildren unaccounted for after the creation of the will. For example, a will may be challenged if it is not amended after the birth of grandchildren when it leaves gifts to other grandchildren born before the will was executed.

3. Improper execution of a will

If a will is not properly signed or witnessed, it may be challenged. Some of the formal requirements that must be followed for a will to be valid are found in Section 7 of the Succession Law Reform Act. There are many situations where a will challenge may result as a result of improper execution. More about improper execution here.

4. Lack of testamentary capacity of the testator

The testator making a will must have sufficient mental capacity to make a will. If capacity is lacking, beneficiaries may challenge the will. This may happen if the testator lost testamentary capacity close to when the will was executed. Testamentary capacity is a very important and highly contested issue in many will challenges. Find out more here.

5. Undue influence on the testator

The testator making a will must be free from undue influence. Otherwise, his wishes may not be reflected in the will. If the testator is pressured by a beneficiary, other beneficiaries may challenge the validity of the will. Undue influence is a serious issue because a succession plan created with undue influence from third parties does not reflect the true intentions of the testator. An estate lawyer should be consulted. More information here.

6. Wrongly named beneficiary in the will

If a beneficiary is named wrong the will may be challenged by another beneficiary with a similar name. This happens rarely and may involve an organization (for example, a charity) that has a similar name.

7. Lack of knowledge or approval of the contents of the will

This may be the result of a mistake or intentional deception. If a will is not clear, beneficiaries or other parties may argue that the testator did not approve the contents of the will. If a testator does not understand or approve of the contents in his or her will, a will challenge will likely follow. More information here.

8. Improper designation of a beneficiary

A possible problem may arise if the designation or the beneficiary is inconsistent with that on a RRSP or an insurance policy. You must make sure all your testamentary documents are in order.

9. Late life marriages

If a testator marries at a later stage in life, potential beneficiaries will likely scrutinize the marriage. This is especially true if there are sudden and unexpected changes to the elderly testator’s estate plan, or if the children or grandchildren of the testator are suddenly disinherited or removed from the succession plan. The disgruntled beneficiaries will likely challenge the new will or any changes to the testator’s succession plan and estate litigation will likely follow. More information here.

Contesting a will due to lack of testamentary capacity

The person asserting a will is valid has the burden of showing that the will for which probate is being sought accurately represents the true wishes of the testator. When contesting a will, this person has to also show that the testator has adequate mental capacity to make the will at the time the will was executed. The legal test for mental capacity to make a will is different from other capacity tests such as the capacity to make a power of attorney, get married, or enter into a contract.

It can also be very difficult to determine whether the testator had sufficient capacity in the past. This becomes more difficult as more time passes. It is important to retain an estate lawyer to ensure you understand the legal requirements in the will challenge process.

Will challenge due to unequal treatment of beneficiaries

The unequal treatment of beneficiaries almost always results in an estate dispute. The beneficiary (usually a child) of the testator that has been excluded from the will likely sees contesting a will as the only way to claim something from the estate of the deceased testator. For example, the testatrix mother in Minkofski v. Dost Estate 2012 ONSC 5598 who was estranged from her son elected to leave him only $200 in her will. The rest of the $250,000 estate was left to various charities and one of her friends.

The disgruntled son objected when the estate trustee applied to probate the will and estate litigation ensued. The son attempted to represent himself in Court and to address complicated legal issues in Court by himself (such as whether his mother had capacity to make the will, whether there was any undue influence when she made, and evidence of her true intentions). The Court declared the will valid and held the son responsible for costs.

You should know all your options when contesting a will

It is therefore important to consult with a lawyer before engaging in estate litigation or contesting a will. In addition to being a Toronto estate lawyer, Charles Ticker is a qualified mediator. He has in-depth knowledge of the estate litigation process and the estate mediation process. His skills as a mediator are very important in Toronto, Ottawa, Windsor, and the County of Essex. In these areas, contesting a will is subject to mediation before a trial.

Charles ticker has represented clients in many different complex will challenges. He has over 40 years of experience. He can also assist you if you are an executor of a will and you have been confronted with a will challenge. Estate litigation lawyers can assist you to resolve your dispute, so you should call Charles for a consultation at your earliest convenience.

The information on this website is not legal advice. It is for informative purposes only. Contacting us does not mean you have retained a lawyer. To book a consultation, call: 1-866-677-7746.