Grief is not an easy process when you have lost a loved one. It’s even worse if after the reading of a will, you feel the deceased was unfair to you, or you have been disinherited.
The first thing to do is consult with a lawyer on whether you have a case. Issues around challenging wills are very time-sensitive and you want to prevent the proceeds of the estate being distributed before you have a chance to contest the will.
There are several grounds on which a will can be challenged in Canada.:
- Lack of mental capacity
- Undue influence
- Will issues
- Intestacy issues
Lack of mental capacity
Sometimes it’s claimed the person who made the will didn’t have the requisite mental capacity to do so.
This often happens in cases where the will was suddenly changed right before death; the person has lost mental faculties or has an illness that affects the mind.
A person has to have the requisite mental capacity to appreciate the legal consequences of his or her act, but what does that mean?
The person making out the will must understand what his or her assets are, what obligations she or he has, and must appreciate the nature and effect of making a will.
Another issue that can be raised to challenge a will is undue influence, often brought up if someone has been coerced to write a will a certain way or to make certain bequests.
This can happen when a person who is making a will is under the power of their family, care-givers, acquaintances or others. Courts often look for “suspicious circumstances”, such as if the person had a mental illness and someone may have taken advantage of their condition.
Many times things like not having the will correctly witnessed, making the language within the will so vague, improper or contradictory will make the document invalid.
Before any major life event that could affect the will, you need to advise the lawyer with whom you made the will, so he or she can advise you whether the will is still valid, or whether it has to be changed.
Also, close family members, such as a spouse or children, witnessing the will make it invalid. A spouse is not a proper witness to the will, neither is a beneficiary or their spouse.
Will issues often arise where a person has written their own will, because they don’t know or understand all the legalities that go into creating the document.
Intestacy occurs when a person has dies without leaving a will. Often, the estate will go through the court which will then decide where the outcome of the estate. Because there was no will left, it is difficult hard for the court to determine what the deceased intended. Usually there is a formula that the respective provincial courts use to determine who gets what.
No matter what, you are going to need to speak to a lawyer about a will if you want to contest or challenge one, or even if you are confused about whether you should take any action at all.
Contesting a Will