Please click a blue link to read about contesting a will in Ontario.
- What can I do if I lost my inheritance?
- Who can contest a will?
- What are the grounds to challenge a will?
- What legal formalities are required for wills?
- What is the Test for Testamentary Capacity?
- How can mediation resolve an estate dispute?
For more information, read my free guide Will Disputes: How to Increase Your Chances for Success.
1. What can I do if I lost my inheritance?
In many cases, a person’s decision to disinherit you cannot be adequately explained.
Such decisions are always painful. You may be unable to accept this decision. You should not wait until you get over it. There are legal time limits to object.
Are the circumstances under which the will was prepared suspicious?
Speak with an estate lawyer if you were disinherited by a will that was prepared:
- in the hospital
- after a person was diagnosed with a terminal illness
- after a person suffered any impairment or memory loss
- after you married the person making the will
- if you were financially dependant and not provided for
If any of these factors are present, you should contact an experienced estate lawyer to discuss your options.
Often, the size of the estate may not warrant you taking further action. There are many factors to consider before you contest or challenge the will. The time and legal expenses are just a few.
Your disappointment or anger at being excluded from a person’s will may be justified. Act promptly to protect your rights.
Get experienced legal advice before it’s too late. Don’t be left empty-handed.
Contact my law firm to arrange for a telephone or personal consultation. Use my experience to your advantage.
2. Who can contest a will
Here’s a list of the people who can contest a will:
- all persons named in the last will;
- all persons named in the prior wills;
- all persons who share in an intestacy; and
- all persons who have a financial interest in the estate (e.g., dependants or spouses of all descriptions).
3. What are the grounds to challenge a will?
A will can be challenged on several legal grounds.
The first consideration is whether the will complies with legal formalities.
If you sign a homemade will in your kitchen, it must still comply with all the legal requirements. It’s no excuse to say you didn’t know the law or didn’t use a lawyer. All wills are held to the same legal tests.
4. What legal formalities are required for wills?
A judge can declare a will invalid if it does not comply with these legal formalities:
- you must at least be eighteen years of age to make a will
- the will must be in writing and signed in front of two witnesses
- the witnesses and their spouses cannot be beneficiaries
- holograph wills are entirely handwritten and signed
- no deletions or erasures are permitted on the document
Yes, you can question a will’s validity if both witnesses didn’t sign it. Wills that meet the formal requirements are presumed to be valid by law.
Questions of Will Interpretation
The choice of words in a will can create confusion or misunderstanding. “I’ll leave my money in the bank to . . .” may be ambiguous.
Does the money include bank certificates and term deposits? If the will is ambiguous, the executor will need a judge to resolve these issues.
What Fundamental Flaws Make a Will Invalid?
Wills can be invalid even if they comply with all the legal formalities. The principal reason is a lack of sound mind. This is described as a lack of testamentary capacity.
5. What is the test for Testamentary Capacity?
Judges will determine if the person making the will had testamentary capacity. Did the person know:
- they were making a will?
- the nature and extent of their assets?
- the persons who would normally be their beneficiaries?
- the actual dispositions being made under the will?
Grounds for challenging a will include:
Lack of testamentary capacity: can the fourfold test for a sound mind be satisfied? Capacity can be affected by drugs, major depression, illness, or plain incompetence.
Eccentrics can leave money for relatives to visit Elvis’s birthplace — but it doesn’t mean they lack testamentary capacity.
Undue influence: this occurs when a person feels compelled to honour a direct or implied threat. The will does not reflect the person’s true intentions.
Lack of free will invalidates the will.
Alcohol abuse, a weakened mental state, or manipulation can create signs of possible undue influence. This is especially true if benefits are given to a person who helped make the will. Evidence must show more than persuasion to win.
Fraud: fraud exists when you are told a lie, such as someone’s sister is dead so that someone else can inherit. Once fraud is proven, the will can be set aside by a judge. Examples also include forging signatures, destroying a will, or changing pages in the will.
Suspicious circumstances: a court can declare that a will does not reflect a person’s true intentions if any suspicious circumstances exist. They usually surround the preparation and signing of a will. Courts investigate suspicious circumstances.
For example, think of a will prepared by your hospital nurse that leaves everything to the hospital. This may mean that the nurse has the onus to remove the court’s suspicion.
6. How can mediation resolve an estate dispute?
Estate Mediation is an alternative to having a judge decide your case after a costly trial.
Contact my law firm to discuss if mediation can work for you.