A Will Challenge

A will challenge is where someone disputes the validity of the last will and testament of a deceased. A person may commence a will challenge to dispute the validity of a will. There are various reasons to challenge a will.

Can I challenge a will?

You can challenge a will if you have standing in a case. Standing means that you are the person with a financial interest in the case. Generally, spouses, dependents, and adult children may bring a will challenge. In Ontario, the Rules of Civil Procedure provides anyone with a financial interest in an estate to contest the validity of a will. An estate trustee, a beneficiary or any person who has a financial interest in an estate may make an application to a court to challenge a will.

What reasons on which I may be successful in the will challenge?

Generally, the will-maker is legally capable of disposing of assets by will, and understands and approves of the contents of the will. The will-maker must be of sound mind and remember those who might expect to benefit or potentially make a claim under the will. Also, the will is signed on a timely basis and there is compliance with the statutory formalities for signing the will. The common reasons for a will challenge are:

1.Lack of approval/knowledge of the contents of the will;

2.Lack of testamentary capacity;

3.Lack of necessary capacity to change the will

4.Presence of undue influence;

5.Non-compliance with the requirements of due execution

6.Mistake, fraud and public policy reason

In Ontario, the most common grounds for will challenge are undue influence and incapacity. Undue influence is a will does not truly reflect the will-maker’s intention because the will-maker is influenced by another party in the drafting of their will. Sometimes, an elderly will-maker may be heavily dependent upon another person for care or assistance, as a result, pressure might be brought to the elderly will-maker who makes a will.

Incapacity means that a will-maker lacks mental competence to give instructions for a will. The will-maker is unable to understand the nature and extent of the assets and comprehend the persons who should receive the assets.

What’s the limitation period for me to challenge a will?

Typically, there is a limitation period for individuals to contest the validity of wills. In Ontario, that limitation period is two years from the date the potential challenger discovered their case. It is common that a person who has financial interests can’t discover a will challenge right away after the death of the will-maker. The limitation period leaves time to ensure potential challengers can find lack of testamentary capacity or presence of undue influence. However, it encourages individuals to make a claim promptly once individual has a reason to challenge a will. The door doesn’t open to the challenger indefinitely.

Landmark Law assists both beneficiaries and estate trustees with will challenge issues. If you are involved with it, please book a free, 30 minute initial consultation with us.[Click Here]

Disclaimer: The following information is intended as general information and not to be read as legal advice. Please seek legal advice from qualified legal professionals.

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Winnie J Luk, BA, JD, MBA, founder of Landmark Law, is a seasoned Ontario lawyer practicing in Wills and Estates, Real Estate, and Business Law and frequent speaker of free legal education seminar.