Challenging a Will in Ontario

Grieving women - wills in Ontario

Posted In

Wills & Estate Law

After the death of a loved one, there are many practical and legal matters that must be attended to during the period of grief. Oftentimes, the settling of the deceased’s estate can be the most emotionally taxing, even when one has expectations of what the Last Will and Testament includes. But what happens when the bereaved are not only surprised by the will’s contents, but believe the document to be fraudulent, coerced, or otherwise invalid?

The frequency of disputed wills is on the rise. In the media, people contesting a will are often painted as enraged and entitled children or gold-digging spouses. However, the real reasons for contesting a will are often much more complicated – almost as complicated as the judicial process itself. If you believe that your loved one did not truly intend the contents of hisher last will, there are several ways to prove so in court, and as a result, have the will deemed invalid.

There are three main arguments used when contesting a will:

  • Undue influence
  • Lack of mental capacity
  • Legal problems with the will itself, such as improper signing, witnessing, or other formalities not observed in the drafting process.

While the third argument is largely self-explanatory, it only applies to a small number of cases. The first two arguments, while more common, are also far more difficult to prove in a court of law.

When arguing undue influence, the contester of the will is claiming that one party, generally the party benefiting most from the will contents, exerted so much control over the deceased that the deceased was virtually unaware of the real meaning of the words in the will. In such cases, two separate burdens of proof are seen: the person propounding the will must supply evidence of testamentary capacity, knowledge, and approval, while the person contesting the will must be able to prove undue influence. In such cases the judge must examine all evidence and attempt to discern the testator’s reasonable intentions.

Similarly, the argument of mental incapacity can be nebulous and complex. However, rather than relying on evidence regarding relationships between the parties involved, the judge must determine whether the testator was able to understand the nature and effect of the will, the extent of property in question, and the claims of those who would expect to benefit from the will. Such judgments frequently require medical testimony in addition to that required for an undue influence argument.

Entering into a complicated legal battle over a will can be overwhelming. Therefore, legal advice is strongly recommended.

If you have concerns surrounding your loved ones’ last will and testament, contact Mackesy Smye via our secure online contact form, or call us at 1-905-525-2341 to speak with one of our experienced will and estate lawyers.

Related Articles

estate planning, wills, trusts, estate lawyers in Hamilton

Peace of Mind - Estate Planning

Having experts guide you through the planning of your post-death estate issues will help put your mind at ease. Proper estate planning allows you to have control over your assets and affairs. This article provides a in-depth look at why estate planning is so important - click to read more.

Read Article
Dependant Privileges Wills and Estate Laws

Supporting Your Dependents in your Estate

Dependent Support with a Will in Place - If you have a will in place and you are supporting your spouse and dependent children at the time of your death, support probably continues for them.

Read Article
trusts, wills and estate planning - hamilton lawyers

Everything You Need to Know about Estates & Trusts

If you own property, proper estate planning is important. Estate planning involves the transfer of assets including property and wealth to individuals or institutions before or after death. Some of the common tools used in estate planning include Wills, Trusts, Power of Attorney and more.

Read Article
Couples Reading Contract - Wills & Estate Law

Wills & Estate Law - Creating a Living Will

A living will, also known as an advance directive, is simply a document that lets people state their wishes for physical care in case they become permanently ill, unconscious, or require emergency medical attention. You can include your “living will” or “advance directive” as part of your Power of Attorney for Personal Care.

Read Article
Happy Young Couple on a Sofa - WIlls & Estate Law

Ontario Wills & Estate Law

In Wills and Estate planning, the transfer of assets and gifts often becomes an area of dispute. A common estate planning technique is to transfer assets into joint ownership. While the intention of such transfers may be to avoid probate fees, the transferor must also consider some legal consequences to avoid unintended results at a later stage.

Read Article
Lawyer and erlderly man working on will - creating a will

Creating a Will - Wills and Estate Law

Recent studies confirm that as many as 50% of Canadians don’t have a will. Writing a Will is a task that very few are willing to consider. At the same time, we should remember that life can be unpredictable and anything can happen to anyone, anytime.

Read Article
Templates Library
Loading, Please wait...
The Library cannot be open, please try it again later.
This field is required.
Invalid email format.
Some of the fields are not filled or invalid.
Form Template
Select a Form Template
Available fields in the selected template: