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Will Challenges & Defending a Will

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Associate Lawyers

You can trust our associate lawyers for all your simple to complex legal matters.

Jagmohan Singh Nanda
Jagmohan Singh Nanda
 Ralph Swaine
Ralph Swaine

A will can be contested if a beneficiary believes that the will does not reflect the deceased’s true intentions either due to fraud, duress, undue influence or forgery. If you wish to contest or challenge the will’s validity, you can do it if you have an interest in the estate either under the will or in an intestacy.

Application for contesting a will is made to the court where the will is being deposited or probated. If the will has been probated, motion in court is made to return the Certificate of Appointment of Estate Trustee. You need to challenge the will by moving for direction. If the will is not probated, Notice of Objection is filed with the registrar to prevent probation till the litigation is settled.

Challenging a Will

Many possibilities may exist for your exclusion in the will. Contesting wills can be an expensive and time-consuming process. It is recommended to discuss and understand your options with a knowledgeable and experienced Wills and Estate Lawyer.

The proper and complete evidence is needed to substantiate all the claims and statements. Cost of challenging a will also need to be considered. If the court decides that the case does not hold merit, it can order you to pay for legal costs of both the parties.

Being aware of the existence of the previous will is also important. If the will is successfully deemed invalid, then any previous will becomes valid and is used to deal with the estate. In the absence of a previous will, the deceased will be taken as died intestate. Ontario Succession Law Reform Act will take precedence in such a case.

If you get disinherited from a will, obtaining legal guidance is vital. Educating yourself is crucial before you decide to go ahead with challenging a will. Nanda & Associate Lawyers can provide the required legal advice you need to defend or challenge a contested will.

Grounds for Challenging a Will

Though there are many grounds for challenging a will, a few of the most common ones are listed below.
Capacity

A testator is a person who makes the will. They need to be aware of and approve the will’s contents. The Testator needs to possess the capacity to understand the will and the assets included in the estate. Their capacity to make a will can be questioned in below circumstances:

  • Is unaware or does not comprehend the document to be signed details the procedure for dealing with their assets post-death;
  • Fails to understand the quantum of assets being disposed of;
  • Fails to comprehend who can claim to be a beneficiary

Legal delusions can invalidate a will if a causal relationship exists between the disinheritance and the delusion. These delusions assume legal status if their impact causes the testator to bequest the property. In other words, if the Testator were of sound mind, the disinheritance would not have occurred.

Undue Influence

Any testamentary document should disclose the Testator’s decisions. If you are planning to challenge a will, you will need to review if these three vital elements are present in the circumstance:

  • Presence of coercion
  • Presence of fraud or cheating
  • The occurrence of any unfair action or improper conduct

If either of these elements is present, undue influence is said to have occurred, and the will can be challenged on its basis.

Execution Formalities

In Ontario, the wills need to be signed as per laid down standards. It necessitates the will to be written, signed by two witnesses in presence of the Testator. Complete adherence to the standards is mandatory, failing which the will can be invalid.

Public Policy

Testatory freedom is not absolute as per Ontario law. Courts have the right to invalidate a will if it offends public morality. Conditions which promote breaking the law, discrimination based on religion, color, culture, sex are few of the situations in which the court can set aside the will. In these circumstances, Canadian public policy takes precedence over the individual’s freedom to choose their beneficiaries.

Spouse, Dependants Ignored

Dependants need to be taken care of in wills as per Canadian law. Spouses can stake claim to the estate or its parts too and can challenge the will. If the asset divisions are considered improper, adult children can contest the will. Estate size, length of the marriage and the dependant’s financial needs are reviewed by the courts while deciding upon the claims.

Fraudulent Wills

If a person believes that the will is forged or made by fraudulent means, it can be challenged or contested. A qualified Wills and Estate Lawyer will be able to help you in understanding your possible options. Facts of the case, risk-reward ratio, legal merit are all reviewed before the case goes to court.

Grounds on Which a Will Cannot be Contested

Certain circumstances do not warrant sufficient grounds for contesting a will. Those are:

Ignored Promises

In Wills and Estate Law, verbal assurances do not count. If you are given a verbal promise but nothing is bequeathed in the will, you cannot challenge it.

Online Will with Software

If the wills were created online using software programs or professional will writing services, they could not be challenged on this ground. If they are in written format, signed by two witnesses in the presence of the Testator, they are legal and cannot be invalidated.

Unfair Will

Typically, if you challenge a will on the grounds of being unfair to one beneficiary, it will not be sufficient for making the will invalid. Though exceptional cases exist in this sphere.

How We Can Help

It is recommended to discuss and understand your options with a knowledgeable and experienced Wills and Estate Lawyer. If you wish to challenge a will or require legal advice for estate litigation issues, please call us today. At Nanda & Associate Lawyers, our experienced Wills and Estate lawyers understand your specific circumstances and provide tailored and customized solutions for each of them.

Our Mississauga Wills and Estate Lawyers are available for a no-obligation free consultation. Feel comfortable interacting with our caring team who speak more than 15 languages like English, French, Spanish, Italian, Portuguese, Albanian, Hindi, Punjabi, Kannada, Telugu, Tamil, Bengali and much more.

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