The loss of a loved one can be a devastating and overwhelming experience. While mourning a loss, you may find yourself scrambling to ensure that all of your family's affairs are in order, especially if you are listed as an Executor, Administrator, or Trustee of an Estate or Trust for the deceased. However, many individuals have also experienced being left out of the deceased's will and believe that they are entitled to a share.
If someone comes to that realization, it is difficult to determine where to begin, as the law surrounding challenges to a will is complicated. Devry Smith Frank LLP's (DSF) Estates Litigation lawyers are able to advise clients on how to proceed with your matter and provide advice and support from start to finish, looking out for your best interests, to achieve the best result when challenging the validity of a will.
There are three common types of legal grounds in which you may challenge the validity of a will:
- If the will fails to comply with the Succession Law Reform Act. Ontario requires full compliance with the formalities of execution. Wills prepared by legal professionals will comply with these rules, while a majority of home-made ones do not.
- If the deceased had the capacity to
make the will.
- Did the deceased know what property
and assets they have and that the will would be disposing of these
assets after their death? Did they have a true understanding of any
obligations they may have to spouses and children?
- A challenge on this ground would require hiring expert medical witnesses to review medical records and retroactively assess the deceased's mental capacity at the time the will was made.
- Did the deceased know what property
and assets they have and that the will would be disposing of these
assets after their death? Did they have a true understanding of any
obligations they may have to spouses and children?
- Whether there were any suspicious
circumstance surrounding the drafting of the will or whether the
deceased was under any undue influence. The will must represent the
true intentions of the deceased.
- Undue influence can occur when a
person feels compelled to honour the wishes of someone making a
direct or implied threat, or attempts to leverage a persons
weakened state to their advantage.
- A child convinces a parent to remove a sibling from the will.
- A will signed on the deceased's death bed leaving everything to a caregiver may give rise to a challenge on the grounds of suspicious circumstances.
- Undue influence can occur when a
person feels compelled to honour the wishes of someone making a
direct or implied threat, or attempts to leverage a persons
weakened state to their advantage.
If you are experiencing any of the issues mentioned above, it is important to seek qualified legal advice from an Estates Litigation lawyer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
