When someone passes away, it’s a very trying time to say the least. For close family members, there’s often a lot of organizing and difficult work to be done, not to mention managing the personal grief and loss. When it finally comes time to have the person’s Last Will and Testament read, there are often a few surprises and disappointments. Some people will try to contest – or challenge – the will if they aren’t happy with what they were bequeathed or if they feel it wasn’t a legal document to begin with. However, the Ontario statistics on successful attempts when contesting a will aren’t promising; after all, if it was legally drafted and the person was of sound mind, then the courts can’t interfere on the presumption that it wasn’t fair. Let’s look at some of the more common reasons to contest a will in Ontario.
- Is the will legally binding?
Even a self-drafted (DIY) will can be legally binding if it was written up correctly with the proper signatures, dates and witnesses. If you feel it was fraudulently written, there are mistakes, or the signatures don’t match up for example, then the onus is on you to prove that.
- Was there an issue with mental capacity?
If the deceased person wrote their will without having sound mental capabilities, then it’s possible to contest the will on those grounds with the proper documentation and evidence. In Canada, people are living longer, and as such, cases of dementia, Alzheimer’s and other such diseases are naturally on the rise. It may be possible that the person did not fully understand what they were doing when they drafted up their will.
- Was there “undue influence”?
Unfortunately, there are cases where a loved one was unduly influenced or pressured by someone else to change their will. In these instances, the will can be contested if it was clearly not reflective of the true intentions of the deceased.
- Were dependents adequately provided for?
There are some dependents who, even if they are not included in the will, they have rights to a portion of the estate if they were financially dependent on the deceased. This can include a spouse, common-law spouse, child, parent, sibling, grandchild and even ex-spouse – to name a few. If they aren’t named in the will, they can contest it to continue to receive financial support while still dependents.
Challenging a will
The first thing to know about contesting a will is that it’s not a simple or quick process. It involves a solid understanding of legal processes, knowing which applications to file and so on. It can also become quite costly and you may also be on the hook for some or all of the other party’s legal fees if the courts don’t rule in your favour.
If contesting a loved one’s will is something you think might be interested in, be sure to seek the advice of a legal team who specializes in wills and estates. Remember, a judge won’t support a claim strictly on the grounds that the will was unfair or hurtful, it must be a valid, legal case supported by evidential proof; you’ll need a thorough understanding of the law and a solid legal team on your side. At Ares Law, we specialize in estate law. It’s our job to advise you on the strength of your case, and help you choose an appropriate course of action. We’re also are here to help you draft a legally binding will or work with you to update your current one. Book an appointment with us today by calling (705) 645–8743 and let’s get started.
