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abc of will challenges

The ABCs of a Will Challenge

My big sister is one of the most loyal and regular readers of this blog.  She is worldly and very intelligent, but frustrated how my use of legal terminology makes the blog less accessible to non-lawyers.  She reminded me that, in today’s world, many people other than lawyers are interested in the topics addressed by this blog.  These people often look to the internet to educate themselves on a host of topics including will challenges.  She chided me for not properly serving those outside the legal profession by using jargon only familiar to lawyers.  So I dedicate this blog to my big sister and it is my attempt to write about a will challenge in English as opposed to legalese.

Grounds for setting aside a will

“Unfairness” is the motivation many clients cite when they complain about a will.  Unfortunately, unfairness is not a good enough reason for a judge to set aside a will.  So what is a good reason?  First, to make things a little easier, let’s introduce a key term when discussing wills.  The person who makes a will is called a testator.

As a general rule, testators have freedom to decide who inherits their property.  It does not make a difference if the will is unfair, silly, mean, whimsical or arbitrary.  It’s the testators’ money so he/she has the right to decide.  So if unfairness is not enough, then when will a judge set aside a will?  There are two paths to consider when challenging a will in Ontario:

  1. Is there proof that the will is not valid?
  2. Notwithstanding that the will may be valid, are there circumstances where the law will divide the estate differently than contemplated in the will?

Under what circumstances does a court consider a will to be invalid?

It sounds trite to say it, but for a will to be valid it must be an accurate, true reflection of the testator’s intentions.  How a court might determine those intentions is another issue worthy of a blog in and of itself.  But the common theme through will challenges is this simple question – Can the person challenging the will prove that the testator did not know or approve of the will?

Sometimes courts will set aside a will because the testator failed to comply with what we call the “formalities of execution.”  In Ontario, a will must be in writing.  It must be signed at its end by the testator (or by some other person in the testator’s presence and by the testator’s direction).  The testator has to make or acknowledge the signature in the presence of two or more witnesses who were present at the same time.  Also, two or more witnesses need to sign the will in the presence of the testator.

Here is a question:  If the key is to make sure that the will truly reflects the intention of the testator, then why does Ontario insist on 100% compliance with these formalities?  Arguably, this may be the reason why in many other provinces substantial compliance with these formalities is sufficient.  It’s been theorized that in Ontario, full compliance with the formalities is intended to prevent ne’er-do-wells from impersonating the testator or someone from forging the testator’s signature.  The thought is to avoid fraud, undue influence and coercion.  As well, it’s believed that with these formalities, the testator will also appreciate the importance of the document.  So perhaps, in Ontario, 100% compliance with the formalities of execution is intended, on a macro level, to ensure that the testator’s genuine wishes are not corrupted by rogues.   For example, Ontario law requires two witnesses.  Another example is that the testator has to see the witnesses sign as witnesses in the testator’s presence.  Now – as explained above, in other provinces you don’t need 100% compliance.  Sometimes one witness will be enough. Whether the reason behind these formalities is right or wrong, what is key to our discussion is that if the challenger can prove that there was a failure to comply with these rules, the courts in Ontario will set aside the will.  So assuming the formalities of execution have been complied with, what options remain to challenge the will?  The first question is whether the testator had capacity.

Now the issue of legal capacity is very complicated.  To successfully challenge a will, it must be proved that the testator did not understand what he or she was doing.  If the testator does not know what he is doing, he certainly cannot know and approve of the will.  The difficulty lies in applying that theory to the facts of a particular case.  It is situation specific.  So what is the test for legal capacity to make a will? As explained by the author of Feeneys, an authoritative scholarly work often quoted by the courts, the will challenger must prove that the testator was unable to comprehend and recollect: (1) what property he or she possessed, (2) the persons that ordinarily might be expected to benefit, (3) the extent of what is being given to each beneficiary and, finally, (4) the nature of the claims of others who are being excluded.  If the person bringing the will challenge proves that the testator did not have capacity to make a will, then the court will set aside the will.

Now it might be that the testator did not have capacity even though he/she was able to understand those four elements listed above.  In some cases, the testator does not have capacity because he/she is suffering from what at law is called a delusion.  For a delusion to affect capacity, it’s not enough that the testator mistakenly believes something or sees ghosts or aliens visiting him.  For it to be a legal delusion, there needs to be a causal connection between the mistaken belief of the testator and his/her decision to disinherit someone.  For example, even if a person sees pink elephants flying through their window, that does not mean that they do not have capacity to make a will.  In order for a delusion to be valid ground to set aside a will, there has to be a causal connection between the delusions and how that person wanted his/her estate to be divided.  One example might be where a testator disinherits his child because he is under a delusion that the child is trying to kill him.  As well, it is not enough for the testator to be mistaken.  For it to be a legal delusion, it has to be a belief that no one acting reasonably could believe.

Earlier I mentioned that for a will to be valid the testator must also approve of the will.  That brings us to discuss what happens when the decisions made were forced upon the testator.  It is common sense that if a testator was coerced into signing a will, then a court will set it aside because the will does not really reflect the testator’s intention.  This is called “undue influence.”  Of course, we must bear in mind that some influence exerted on the testator is okay.  When a testator is strong and healthy, normal efforts by family members to increase their inheritance may be attempts to influence, but it is not undue.  These sort of things will not invalidate a will.  Courts will, however, set aside a will when the evidence shows that the testator’s own views and opinions regarding the inheritance were overwhelmed to the point that the testamentary decisions were not really those of the testator.

Public Policy, Family Law Act and Succession Law Reform Act

We have already discussed how, as a general rule, a testator has freedom to decide who gets his or her property after death.  But the law also recognizes that this concept of testamentary freedom is not absolute.  The law recognizes that when a will offends against public morality and profoundly runs afoul of Canadians’ moral outlook it should be set 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.  They include, but are not limited to, wills that make 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 is not the only example of how testamentary freedom is not absolute.

During his/her lifetime, the testator may have entered into certain relationships.  Responsibilities flow from those relationships and the testator is not relieved of his/her responsibilities at death.  Under the Family Law Act, Ontario recognizes financial responsibilities to spouses, parents and minor children.  Under the Criminal Code parents are obligated to provide their minor children with the necessaries of life.  Under the Succession Law Reform Act, the deceased and his estate may be ordered to pay adequate and proper support to spouses, parents and children.  All of these obligations trump testamentary freedom.  Why?  Because it is not the state’s obligation to make up for a spouse/parent’s refusal to comply with his/her legal and moral obligations. So for those that are disinherited, they might have the right to apply to court for support notwithstanding that the testator’s will is valid because the testator’s obligations to provide adequate and proper support to his/her dependants have to be honoured prior to the bequests mentioned in the will.

The authors of this blog are Charles Wagner and Brendan Donovan. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP and Brendan was a partner.

This Toronto office is a boutique litigation law firm whose practice is focused on estate and commercial litigation.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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