Canadian courts have acknowledged that a testator should be free to dispose of his or her assets as he or she sees fit. A "testator" is the person who makes a will.
If you have not received your fair share of an estate or been disinherited by a parent, you may be able to contest the Will.
There are generally 6 main grounds for contesting a will:
1. Failure to provide adequate provision for a spouse or child
In British Columbia, spouses and children have the right to challenge the deceased’s Will on the basis that the deceased “failed to make adequate provision” for them.
The current legislation, the Wills variation Act, will soon be replaced with the Wills Estates and Succession Act (“WESA”), which comes into force on April 1, 2014. The courts have found that although there are no legal obligations to provide for adult children, there is a moral obligation if there are sufficient assets.
Conversely, if a spouse has not been adequately provided for, there is a legal obligation on the deceased to provide for a spouse and the Courts will be more likely to vary a Will in those circumstances.
Other factors such as: the size of the estate, the length of the marriage, the financial needs of the spouse or child and competing moral claims will be considered.
2. Lack of knowledge and approval of the Will’s Contents
If the testator did not have knowledge and approval of the will’s contents, or if the testator did not understand the consequences of the wording, then a will may be invalid.
Factors a court may consider in determining whether the testator had knowledge and approval may include: whether the testator had physical difficulties regarding such things as vision or hearing, the will constitutes a significant change from previous wills and the testator made unnatural dispositions, beneficiaries involved in the preparation of the will or manipulated the testator.
Other factors such as physical and emotional dependency and isolation form family and friends are also factors the court will consider.
3. Undue influence
This is the most common ground for challenging a will. Where a person influences a testator by force, fear or in a manner that overbears and coerces the testator to change their will there may be undue influence.
It is not enough just to show that the testator was persuaded or merely influenced the testator. It must be such that it coerces the testator to overpower his or her own mind.
Factors that the courts will consider may include the vulnerability of the testator, the degree of pressure exerted and whether the new will departs radically from previous wills.
As of April 1, 2014 with the enactment of WESA there is a significant shift in the burden of proof where there is an allegation of undue influence. The person alleged to have unduly influence must now prove that they did not unduly influence the testator.
This is a dramatic shift from the pre-WESA law.
4. Lack of testamentary capacity
A will may be invalidated if a testator does not have the requisite testamentary mental capacity to make a will. Testamentary capacity is a legal test, not a medical test: however, the court will make its determination based on medical evidence.
In order to have testamentary capacity the testator must :
- Understand he or she is making a will that disposes of his or her property on death
- Have knowledge of the property she or he owns and is disposing of
- Have in mind persons who might ordinarily expect to inherit, such as family members and
- Must be free of mental disorders such as delusions, dementia etc. that would affect his or her judgment
5. Mistake in drafting a will
A mistake, whether induced by fraud of a third party or by a mistaken belief of the testator may render the whole will, or parts of it, invalid.
If it can be established that a testator was told an untruth which influenced the testator to dispose of his or her property in a way that affected his or her true intention, then the will may be set aside for mistake induced by fraud.
Accidental mistakes are where the testator is motivated by a belief in a mistake of fact, and the will is based on that mistaken belief, then the will may be set aside.
The new WESA gives the court wide powers to rectify a mistake in a will, such as inserting or deleting words that have either been omitted or inserted in error.
6. Invalid execution in signing a will
Invalid execution typically occurs when a testator has made a homemade will and has not followed the requisite formalities of executing a will.
To have a valid will it must be:
- In writing
- Signed by the testator in the presence of two attending witnesses
- The two witnesses must witness the will in the presence of the testator and in the presence of each other and
- Must be nineteen years of older, unless the testator is in the armed forces
Again, the new WESA gives the court wide powers to hold a will valid even if the formalities for execution have not been followed, provided there is evidence that the will contains the true wishes of the testator.
If you are considering challenging a will, an action must be brought within six months from the date of the grant of probate. If you are uncertain whether a limitation period has, or is about to, expire, then seek legal advice immediately.
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