Ways to Challenge a Will

Ordinarily, where a Will is in writing, validly executed, and unambiguous, the court will not find reason to vary or change it. However, even where a Will appears clear and unambiguous, there are certain situations where fairness will require a court to make an order requiring certain persons to be paid out of the estate who may not be provided for in the Will. Further, a Will that appears clear and unambiguous may still be found to be invalid for a variety of reasons. 

Our experienced estate lawyers, serving clients in Markham and all of York Region are capable of providing the legal guidance you need in challenging or defending a challenged Will.

The Testator Lacked Testamentary Capacity

For a Will to be valid, it must be shown that the testator had “testamentary capacity” to approve of the contents of the Will.

To have testamentary capacity, four elements are required; one needs to understand what it means to make a Will, understand the extent of his or her own property, understand and consider the persons who might expect to be included as beneficiaries to the Will, and be aware of who has been left out and the effect that this will have.

The Testator Did Not Approve the Contents of the Will &/or Did Not Have Knowledge of the Contents

The testator to a Will, or the person making the Will, must be aware of the contents of the Will and explicitly approve of its contents (especially where it is drafted by another person). This is different from testamentary capacity in that a person may have testamentary capacity and yet not know and approve of the document he or she is signing or what is contained in it.

The Testator’s Will Does Not Comply with the Requirements of the Succession Law Reform Act

Ontario’s Succession Law Reform Act (SLRA) details a variety of strict requirements that must be met for a Will to be found to be valid at law. If these are not met, a person interested in challenging a Will may find it easier to do so.

For example, a valid Will must be witnessed and signed by two people who do not have an interest in the Will. While this can seem like a somewhat rigid requirement, it is meant to protect the testator, and to make it clear that no suspicious circumstances led to the signing of the Will.

The SLRA also requires that adequate provisions be made for certain classes of family members, namely spouses and dependant children. A Will may be challenged on the grounds of it inadequately providing for these beneficiaries.

The Testator Was Unduly Influenced in Preparing His or Her Will

As above, rules about witness requirements are in part meant to ensure that the testator signed his or her Will in a non-suspicious situation, free of undue influence, pressure, or threats from third parties.

If it can be shown that an interested party seriously manipulated the testator in drafting the Will, or threatened the testator, the Will may be found to be invalid. Sometimes, the testator’s mental health can play a role - an interested party may coerce the testator to include provisions in the will at a time when the person knows that the testator is affected by memory trouble or confusion.

What is the Process for Challenging a Will?

The process of challenging a Will differs somewhat from other litigation proceedings in court (which are typically commenced via an Application or Statement of Claim). The specific process varies depending on the reason why the Will is being challenged.

You must first determine whether the Will has been probated - in other words, whether a court has already determined that it is valid and issues a Certificate of Appointment of Estate Trustee (which allows the named estate trustee of the Will to begin administering it).

Where probate has not been granted, a form called a “Notice of Objection” must be filed with the court. Where a Certificate of Appointment of Estate Trustee has already been granted, the process is more complicated and a motion must be brought for the return of the Certificate of Appointment. As such, it is important to always consult with a lawyer to help you navigate the appropriate process to take, and to ensure that you take all necessary steps in the required time.

Contact Donnell Law Group for a Will Lawyer in Markham & York Region

If you are seeking to challenge or defend the validity of a Will, call us at Donnell Law Group for an initial consultation to discuss your case. We can assist you, including if you require a court resolution through estate litigation. Call us today at 905-476-9100.

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