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Challenging a Will (Contest A WilL)
Once probate is obtained the executor could distribute the assets and complicate enforcement of any future judgment. Accordingly, the first step taken to contesting a will would depend on whether the will was probated. If no certificate of appointment was granted the first step in contesting the will should be filing a Notice of Objection to prevent the Will from being probated. The Notice of Objection will set out the nature of our client’s financial interest and the grounds for the objection. As long as the objector follows the necessary legal steps, as a result of filing the notice of objection the applicant for a Certificate of Appointment of Estate Trustee (the Probate application) cannot obtain probate without the issues in dispute being litigated or resolved.
If Probate was already granted we would bring a motion for the return of the certificate of appointment and move for directions to challenge the will on several grounds.
The first ground for challenging the validity of John’s new will would be its failure to comply with the rules set out by the Succession Law Reform Act (Wills need two witnesses). Ontario requires full compliance with the formalities of execution.
As well we would investigate whether or not John possessed the capacity to make a Will.
- Did he know what property he had?
- Did John understand what he owned or remembered his moral obligations to Mary and her Mom?
This investigation would require hiring expert Psychiatric witnesses to do a retrospective analysis on the deceased’s capacity.
Another ground for challenge is that a Will has to represent the true intentions of the deceased. In this scenario there were suspicious circumstances surrounding the execution of the will and John may have been especially vulnerable to his caregiver such that any pressure exerted by Sabrina may constitute undue influence that would invalidate the Will.