Testamentary freedom or the right to dispose of your property as you see fit is strongly enshrined in Canadian law. Nevertheless, the Will can be contested by deprived ones. Contesting a Will means applying to the court to have the Will deemed invalid. Because the owner of the Will is deceased, contesting of the Will requires proof and evidence to support your claim.
Reason for Challenging the Will
Each case may be different, but here are some common reason for contesting a will:
Legal Insanity/ Mental Capacity
Deceased person can be found to be insane, senile or suffering from dementia if he/she did not know they were writing or signing a Will, or the nature of such document as the Will. In this case the Will can be challenged.
Deceased person was pressured to change the Will terms by family member or another person. In this case, all previous versions of the Will will be reviewed by the court and if any drastic mismatches will be found – the Will can be contested.
By Ontario law, the Will should be signed in presence of two witnesses, who are not included in the Will and have no gain out of it. If the proof will be furnished that the Will was not signed or witnessed properly according to the law, you may challenge the Will.
If there is a proof that documentation was fraud (forged signatures, false documents, presented misinformation that lead to Will changes) – the Will may be render ineffective.
Spouses and Dependants
Canadian law states that after person’s death his/her spouse and adult children may claim part of the estate. In other words, a spouse, minor and adult child, who can demonstrate dependency on deceased person cannot be disinherit. Therefore, if the property division acknowledge the Will to be unfair it can be challenged.
If there is a proof that one’s Will and testament was misinterpreted, it may lead to Will contesting.
In case the Will was declared invalid, there are two possible sequence of events:
- A deceased has had a previous Will, which now comes into effect and will determine how the estate will be dealt with.
- If there was no previous Will the deceased will be considered to have died intestate. This means that the estate will be dealt with under the Ontario Succession Law Reform Act. (https://www.ontario.ca/laws/statute/90s26)
Will contests are a complex area of law and contesting a Will is time and finance consuming process. For example, recent legal changes in some parts of Canada states that case is without the merit, you might be obliged to pay not only your own cost, but also expenses of the other parties. Therefore, it is strongly recommended to get a professional legal help in a very beginning of the process.
If you have any questions regarding Will’s validity or need help to start court proceedings – contact MLK Law.