The importance of creating an estate plan, including a Will, cannot be overstated. When a person dies without a Will, it creates a situation for their surviving loved ones that can be extremely stressful and full of conflict. Without proper guidance, potential beneficiaries may be required to enter into costly and lengthy litigation just to sort out the distribution of their loved one’s assets. However, even in some cases where a person takes the time to create an estate plan, there is potential for disagreement. A primary reason for litigating an estate even when a Will exists is based in the concept of challenging the validity of the Will.
Why Are Wills Challenged?
There are several reasons a Will may be challenged; some relating to the circumstances under which the Will was executed, and some relating to the terms of the Will itself. Below are some of the most common reasons a Will might be challenged in Ontario:
Will Challenges Based on the Execution of the Will
When a person signs their Will, it is vital that they are fully aware of the terms of the document, and understand what they mean. If there are concerns that a person may not have sufficient mental capacity to understand the document, this could cause reason for one or more people to challenge the Will. For example, if a parent had been exhibiting signs of dementia prior to signing their Will, there may be legitimate questions as to whether they were able to fully grasp what they were signing, and the document’s impact on the beneficiaries.
Another concern that is sometimes tied in with the issue of capacity is that of undue influence. This occurs when there are concerns a third party may have had a hand in influencing the testator with respect to the contents of the Will. Some people may take advantage of someone with mental or cognitive vulnerabilities to manipulate them into leaving the influencer a favourable portion of their estate. IN such cases, the other beneficiaries, or potential beneficiaries, might challenge the Will itself.
Fraud or Forgery
If there is concern that the testator did not have a hand in signing the Will at all, this can also create a valid reason to challenge the Will. Challengers will have to establish cause to belive the signature was forged, or created via some other fraudulent means, to be successful. Generally, being able to establish the testator’s actual intent to the contrary will be the best way to establish this.
Challenges Based on the Will Itself
When there are multiple Wills and there is a question of which one is the most recent, the parties will likely bring a challenge, particularly in cases where the Wills are drastically different. It will be up to the concerned parties to demonstrate which Will is most current. For this reason, it is crucial that a Will is properly dated, and best practices would dictate that any previous Wills should be destroyed to avoid confusion.
Failure to Properly Consider Dependants
While a testator can generally dispose of their assets however they see fit, there are some laws requiring the protection of dependants that must be complied with. For example, a testator is generally required to provide for a spouse and any minor children in their Will. Further, if the testator had adult children who were dependant due to physical or cognitive issues, they will have an obligation to them as well. The obligation to properly account for dependants is one of the main limitations on testamentary freedom and failure to fulfill this obligation could result in a valid Will challenge.
If you are the beneficiary (or unfairly excluded beneficiary) of an estate and have questions around possible legal vulnerabilities of the Will, it is best to consult with a skilled estate litigation lawyer right away. The lawyers at Prudent Law in Mississauga are trusted advocates in any type of civil litigation. We provide practical advice and passionate representation in both estate litigation and alternative dispute resolution options. If you are facing a legal dispute and you’d like to discuss it with one of our experienced litigation lawyers, please call us at 905-361-9789 or contact us online.