Contesting a will is a legal proceeding in which arguments are made in court to have the will declared invalid. A person who believes a will is invalid or illegal may contest it in court. It is important to note that any will, regardless of how it was prepared, can be challenged by family members or other individuals.
A will prepared by the testator (the author of the will) that is either handwritten (holographic will), created using a store-bought Canadian will kit, an online platform, or even one prepared by a lawyer can all be contested.
When preparing their will, some people can be concerned about whether their final wishes will be overturned by the courts.
Contesting a will requires a significant amount of time, money, and evidence to support the claim being made. Every case is unique, but the most common reasons for contesting a will are as follows:
Undue Influence
When someone believes that a person (or persons) has exerted undue pressure on the testator (author of the will) to change their will. This is most common in vulnerable people, such as the elderly or those with cognitive impairment.
Lack of Mental Capacity
When someone believes that the testator is unable to make their own decisions due to an illness, disability, or mental health problem.
Problems with the will itself
This is when someone questions the validity of the will due to linguistic inconsistencies, improper witnessing, or a lack of signature.
Family Member is Cut-Off
A family member who has been cut-out of the will may contest the will and could claim undue influence or lack of mental capacity. This is distinct from a spouse or child who may be entitled to support under provincial law and may file a claim for dependant support.
Interpretation of the Will
This occurs when a clause is ambiguous and gives rise to one or more conflicting meanings.
Fraud or Forgery
Also subject to undue influence. This is when someone lies, threatens, or threatens the testator in order to persuade them to change the way they distribute their assets or forges their signature in order to benefit from the estate.
When someone decides to contest a will, it certainly doesn’t mean that it will be overturned. It can take the court a long time to look at all of the facts and make a decision.
While the majority of wills are upheld, if the court decides a will is invalid it can either put an earlier will in place if one exists or distribute assets according to government intestacy laws.
It is now easier than ever to create your own legal will and creating your legally-valid will can take far less time than you think. If you haven’t created you will yet, you should seriously consider it.
Kevin-Barry Henry, #1 Bestselling Author
THIS ARTICLE IS PROVIDED AS A GENERAL SOURCE OF INFORMATION ONLY AND SHOULD NOT BE CONSIDERED TO BE PERSONAL INVESTMENT OR LEGAL ADVICE. READERS SHOULD CONSULT WITH THEIR FINANCIAL OR LEGAL ADVISOR TO ENSURE IT IS SUITABLE FOR THEIR CIRCUMSTANCES.