Dealing with the loss of a loved one is a difficult process. Sometimes, it can be made even more challenging if you have been unfairly or unexpectedly excluded from the will of the deceased individual. If you have been excluded from a will, you may have options available to you.
Legal Procedure for Handling an Unfair Will
1. Dependent Support Claims
Ontario law requires that you make “adequate provision” for your dependents. You can only be a dependent of the deceased person if you are one of the following:
- a husband or wife of the deceased;
- a common law husband or common law wife of the deceased;
- an ex-husband or ex-wife of the deceased;
- a son or daughter of the deceased, whether you are a child from a previous marriage or a child from a new marriage;
- an adult child of the deceased;
- a disabled child of the deceased; or
- a brother or sister of the deceased.
Ontario law prohibits an individual from disinheriting their spouse or dependants in their will. Be aware of a six month time limit from the date that a trustee is appointed to make a dependent support claim.
2. Spousal Election
The law allows a surviving husband or wife to choose between what a will provides and what they would have received had a divorce occurred on the day before the death. The spouse will receive an equalization payment instead of an inheritance. Essentially, you can get a divorce from the estate. If this results in more money for you, you should do it. Be aware of a six month time limit from the date the deceased died to bring a spousal election.
3. Challenge the Will
If you are disinherited by a will but stood to inherit under a prior will or through intestacy (no will) procedures, you should consider a will challenge. A will requires all of the following to be valid:
- Due Execution: Usually, the will must have been signed by the deceased in front of at least two witnesses who also sign the will. If a witness is also a beneficiary, they may not be entitled to receive any assets under the will.
- Testamentary Capacity: The deceased must have been of sound mind, memory, and understanding when he or she signed the will.
- Knowledge and Approval: The deceased must have had knowledge of and approved the contents of the will.
- No Undue Influence: Undue influence means more than just persuasion, but it is not necessary to show physical violence, confinement, or threat.
- No Estate Fraud: A court will not accept a false will.
Consult with an Estate Litigation Lawyer
Choosing whether to take legal action against an unfair will is not a decision anyone should make lightly. A lawyer trained in estate litigation can help you determine whether your claim is strong enough to proceed.
Katzman, Wylupek LLP offers a wide range of services related to estate litigation. We can help you determine the best path forward when faced with an unfair will.
Unlike most other estate lawyers, we are willing to take cases on contingency. The contingency fee will be a percentage of what is won and is normally payable at the end of a file. Hourly rate options are also available.