The death of a loved one is stressful. It can be made more difficult when family members feel unfairly excluded from the deceased’s will. While the terms of a will may seem unfair, unfairness may not be a reasonable basis to challenge it.
Below are some of the grounds to challenge a will.
Lack of Testamentary Capacity
For a will to be valid, the testator (the person who made the will) must be competent and capable of understanding the terms of their will. The courts may find that a will is invalid if at the time the will was created, the testator:
- Didn’t understand the nature or implications of their will.
- Didn’t understand the extent of the provisions made in their will (i.e. they lacked full knowledge of their own assets).
- Didn’t understand who was included or excluded in their will.
- Was suffering from a condition (e.g. dementia) rendering them incapable of executing the will or giving instructions for its creation.
A court will assume that the testator had full capacity upon signing unless evidence is provided to the contrary.
Undue Influence
A will may be found to be invalid if someone coerces a testator to create or change their will against their wishes (for example, through undue pressure or threats).
The testamentary wishes outlined in a will are presumed to be true unless there is evidence to the contrary. It is not enough to simply show that the testator was influenced or persuaded. Instead, the challenger must prove there was coercion that led to the change and, thus, the terms of the will do not accurately reflect the testator’s true wishes.
To determine this, the courts may consider the testator’s vulnerability at the time of signing and how drastically a new will departs from an older one.
Improper Execution
In Ontario, a will must be created and executed in accordance with the Succession Law Reform Act. If the provisions of this statute are not followed (for example, if it is lacking two witnesses) a will may be deemed invalid.
Fraud
If a signature is forged or there is evidence that part of the will was manipulated or falsified, the will or part of it may be rendered invalid.
Unclear Intention
A will may be rendered invalid if the testator’s intentions cannot be determined because the will is vague or ambiguous. Working with a trusted legal expert when drafting a will can help avoid such problems.
Lack of Provision for Spouses or Dependents
While adult children are not automatically entitled to any of the deceased’s assets when excluded from a will, spouses are treated differently. If a spouse has been left out of a will, or if inadequate provisions have been made for them, they may have grounds to challenge the will. People who were financially dependent on the deceased may also have grounds for such a claim.
Changed Circumstances
If the deceased has not updated their will to reflect a change in life circumstance (for example the birth of another child) the courts may set aside a will on the basis that it no longer reflects the testator’s true wishes.
Public Policy Considerations
The courts adhere to the concept of testamentary freedom — the idea that the deceased has a right to distribute his or her assets as they wish, regardless of how fair or unfair it may seem. However, under certain circumstances, the courts may invalidate a will if it offends public policy. For example, if the conditions of the will promote illegal conduct, or discriminate on the basis of religion.
If a will is declared invalid, a preceding valid will would govern the distribution of the deceased’s estate. If there is no preceding will, then an estate would be distributed in accordance with the laws of intestacy under the Succession Law Reform Act.
If you are considering a will challenge, please feel free contact us to schedule a consultation with one of our estate litigation lawyers today.
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
