What a Spouse, Dependent, Relative, or Beneficiary in a Prior Will Can Do to Contest a Will
Ontario laws provide options to spouses and dependents of deceased people so that they are not necessarily stuck with what a valid will provides. Further, if there is reason to believe that a will is not valid, any beneficiary in a prior will, and some relatives if there is no prior will, can contest a will (challenge a will).
Who can Challenge a Will and What Grounds Do You Need to Contest a Will?
A will can only be challenged by someone with sufficient standing to do so, such as a relative who would inherit if the will is defeated or a beneficiary in a prior will.
Grounds by which a spouse or dependant can challenge a will:
- Invalid execution of the will. A will must be in writing and properly signed in front of two witnesses to be valid. There are more wrinkles to this rule, including that a witness who is also a beneficiary may not be able to inherit, but the will may still be valid. Handwritten wills are treated differently.
- Lack of testamentary capacity. The testator (person making the will) must understand what they are doing when they write their will. Since many individuals write or modify their will in their old age or when they become very sick, they might suffer from cognitive decline. After they are deceased, it is often difficult to say whether a testator had capacity when a will was made. This uncertainty has made testamentary capacity a popular reason to challenge a will.
- Lack of knowledge or approval. If the testator had help writing their will, they must have been aware of and approved its contents. Probate judges may consider evidence that the testator had vision or hearing issues, did not understand the will due to a language barrier or was manipulated by certain beneficiaries. Manipulation will overlap with undue influence described below.
- Undue influence on the testator. While a testator can be influenced by the wishes of others, the influence must not be “undue”. This means that the testator must not be coerced or pressured by anyone into changing their will. Evidence of coercion may come in the form of the testator being in a vulnerable position or if the contents of the last version of the will represent a radical departure from previous versions.
- Fraudulent or forged will. If it can be demonstrated that a testator’s signature was forged, the will be considered fraudulent and invalid.
How to Contest a Will
The first step to take when contesting a will is to seek legal advice. A lawyer trained and experienced in estate litigation can advise you on the right course of action. An estate lawyer can warn you if the time and risk of costs in litigation might not be worth the share of the estate you are seeking, or your will challenge case is simply not strong enough to proceed. If it makes sense for you to proceed, a lawyer can issue an application or action to challenge the will.
Katzman, Wylupek LLP is committed to helping spouses, dependents, and beneficiaries secure their legal share of an estate. We understand that contesting a will can be a difficult and emotionally draining process for families. We are here to make that process as smooth as possible for you. We offer free consultations and we have billing options that allow you to only pay if and when your case is resolved.
Call us now or contact us online.
- Testator: the writer of the will
- Estate: the assets of the testator that are given by a will
- Executor: a person named in a will or appointed by a court to manage an estate
- Beneficiary: anyone named in a will to receive part of the estate