Thinking About Challenging A Will?
If your spouse, close relative or friend has disinherited you, this is a good place to start educating yourself on your options. But remember, it is only the start of making an educated choice about whether to challenge the will.
Most Common Ways To Challenge A Will
The person making a will is called a Testator. For a will to be valid the Testator has to know and approve of the contents of the will. A Testator cannot know or approve of a will if he/she does not have the capacity to understand what the will says or know what assets make up the estate. The Testator’s capacity to make a will comes into question if the Testator:
- does not understand that he/she is signing a document which says how his/her assets are supposed to be dealt with after death;
- does not understand the extent of the property being disposed.
- does not appreciate who might have a claim to be a beneficiary.
Sometimes a person may be very smart and know everything about his assets, but suffer from a legal delusion which would invalidate a will. Not every mistaken belief or hallucination invalidates a will. Seeing ghosts or pink elephants flying through the window will not invalidate the will. However, when the decision to disinherit is based on a spirit’s warning that the beneficiary has a gun and plans to kill the testator then the will may be set aside because there is a causal connection between the delusion and the disinheritance. For the mistaken belief to constitute a legal delusion it has to be such that if the Testator’s mind had been sound the bequest or disinheritance would not have been made.
As discussed above, a foundation point in these sorts of discussions is that the testamentary document should genuinely reflect the decisions of the Testator. So when considering this question the person thinking about challenging a will has to ask – Was there coercion? To succeed in setting aside a will on the basis of undue influence the court has to be persuaded that the person being accused of exercising undue influence exercised some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating, some sort of fraud.
Formalities of Execution
There is a law in Ontario that describes how wills are supposed to signed. It sets out that the will has to be in writing, that there have to be two witnesses and that witnesses have to sign the will in the presence of the Testator. Most cases in Ontario suggest that there has to be 100% compliance with these rules failing which the will be set aside.
Ontario law also recognizes that this concept of testamentary freedom is not absolute. When a will offends public morality the courts have jurisdiction to set it aside. This is not a mathematical formula easy to apply. Here are some of the types of issues that gave rise to a court setting aside a will on the grounds of public policy – bequests conditional on the beneficiary not getting married, or that promote breaking the law, or discrimination against people based on their religion. The message here is that there are times that the individual’s freedom to choose his/her own beneficiaries is trumped when those choices contravene Canadian public policy.
This short general overview is really just a basic introduction to the topic of will challenges, and is far from complete. In some legal texts there are entire chapters devoted to each issue. This short article is not meant to be legal advice. Reading this article is only meant to be the first step for those who are considering a will challenge.
The next step is to meet with a qualified lawyer who will thoroughly investigate the facts and explain your legal options.
Based on the nature of our practice and experience our office deals with many potential clients who feel wronged and want to challenge a will. For some we discourage proceeding because their case may be too weak or because the risk is not worth the reward. For others we point out facts and legal issues that they had not considered that bolster their case and merit proceeding to court. The bottom line – nothing replaces seeking out the counsel of a qualified lawyer who specializes in this niche area of the law and has the expertise to guide you in your decision making process.
It’s not just about the law. It’s also about knowing the process well enough to determine whether the prospects of success warrant the economic and emotional investment.