How To Contest A Will In Canada?

When a loved one passes away, it’s not uncommon for some beneficiaries of the deceased to feel that the estate has not been distributed according to the Will, or that they did not receive what they believe they deserved. As such, some beneficiaries may choose to contest a Will. 

But is this even possible? If so, how can a Will be successfully contested in Canada?

When Can You Contest A Will In Canada?

When a Will is created properly, it is considered a legal document, which means the content distribution as specified in the Will must be carried out as noted. A Will cannot be arbitrarily contested without significant reasons. That said, there may be certain circumstances in which a Will may be contested in Canada:

Lack Of Mental Capacity 

A Will may be contested if the person making the Will — also known as the “testator” — did not have the mental capacity to make a Will. The testator may be required to undergo a testamentary capacity test, and the court will then determine the person’s mental state based on medical evidence. 

As long as the testator understands the implications of their Will, the document should stand; the person does not necessarily have to understand every word written. 

Undue Influence

If the testator was influenced by force by someone else, this may be grounds to contest the Will. In this situation, another person may coerce or threaten the testator to overpower their mind to change their Will. 

The court will consider how vulnerable the testator is, the amount of pressure put on the testator, and how different the Will may be from previous Wills. The burden of proof lies with the person being accused of influencing the testator, who must show that they did not coerce the testator. 

Improper Execution Of Will

A Will must go through certain steps in order for it to be considered valid. Some beneficiaries may argue that the will of a loved one was improperly executed. 

Fraud

A Will may be fought if it is believed that it was forged in some way. For instance, if someone drafted up a Will in someone else’s name and forged their signature, this would be considered fraudulent. In this case, the Will would be invalid.

Interpretation

The person drafting a Will must understand what is being included in the Will and approve of its contents. In other words, they must have knowledge of what they are signing and that it Will be legally binding. If the testator did not understand and approve of the Will and its contents, then the Will may be considered invalid.

No Provisions For Dependants Or Spouse

Dependants must be taken care of in most parts of Canada, and spouses may have a stake in an estate. As such, provisions must be made for dependants or the spouse. If not, the Will may be contested. 

Adult children may also challenge a Will if the division of property is considered to be unfair. While there may be no legal obligations to provide for adult children, many provinces support the ethical obligation for provisions to be made if sufficient assets are available. There may also be a legal obligation for the testator to provide for a spouse if they have not been adequately provided for.

How To Contest A Will In Canada

Challenging a Will is a complicated process and must be done in court. You’d be well-advised to hire an estate lawyer to help you out rather than try to contest it on your own. 

To contest a Will, a Notice of Objection will be prepared and filed with the court. A motion will then be brought forth for direction of the court or the return of the certificate appointment, which requires several court applications. If this process is not done properly, it can be extremely expensive and time-consuming for everyone involved. 

The following chart outlines the individual laws and acts that govern Wills in each province and territory: 

Reasons You May Want To Contest A Will But Cannot

It’s not easy to contest a Will. There are several situations in which you would have no grounds for challenging a Will, such as the following:

Verbal Promises 

As mentioned earlier, a Will must be in writing in order for it to have legal standing. Any verbal agreements made between you and the testator do not count in estate law. 

You Think The Will Is Unfair

While there may be certain provisions for dependents and spouses, there’s no law that states that people must be treated fairly, including when dividing an estate amongst children. Unfortunately, disputes often arise among adult children when it comes to how an estate is divided. One sibling may be given a larger percentage of the estate, which can leave the other sibling feeling cheated. 

However, situations like these are not grounds to contest a Will. That said, there have been some cases in which the courts have re-written Wills to ensure a fairer distribution of an estate. 

You Aren’t On The Will 

While some people may have a legitimate argument to be included in a Will — particularly dependants and a spouse — others do not necessarily have a claim in an estate, including adult children (except in BC).

The Will Is Digital 

Using an online platform is a legitimate way to draft a Will. As such a Will created in this manner is not grounds to challenge it. There are plenty of legal online Will services that help Canadians draft up their Wills that are just as legally binding as Wills created the traditional way. 

As long as the drafting of the Will follows a certain protocol — including being in written form and signed in the presence of witnesses — it is legally binding. 

Online Platforms You Can Make A Will

How Can You Stop Your Will From Being Challenged?

The purpose of creating a Will is to ensure your wishes are met when you pass away, including how your assets are distributed. But there is always a chance that someone may want to contest your Will, either while you’re still living or after you’ve passed on. 

As mentioned, contesting a Will requires court proceedings, which can be complicated without legal assistance. There must be solid grounds for challenging a Will, so it’s not as easy as some may think. The fact is, any Will can be contested, no matter how it was created, but there are some ways to help ensure that any challenges against your Will are stopped:

• Prove that you are competent when drafting your Will.
• Ensure that there is no evidence that you are under any influence when creating your Will.
• Make sure your Will is executed properly by having it in written form and signed and witnessed by two independent witnesses.
• Explain your decisions to your loved ones to ensure they understand the reasoning for your decisions.
• Include a no-contest clause, which states that if a beneficiary contests the Will and loses, they Will not receive anything. The risk of challenging the Will can be too great, which may deter anyone from challenging the Will. 
• Record the signing of your Will.

Here are 5 reasons you need a Will in Canada.

What Makes A Will Legal In Canada?

In order for a Will to be valid, it must meet the following:

• Be in writing
• Be signed by the testator in the presence of two witnesses
• The two witnesses must also be in each other’s presence 
• The witnesses cannot be beneficiaries of the Will or be married to a beneficiary (in some provinces)

The testator must be the age of majority in the proving they live in unless they are in the armed forces.

Final Thoughts

Having a will in place is important, especially if you have minor children or a vast estate. Equally important, however, is that you ensure that your Will is created using the help of a lawyer or a valid online will-generating service. 

As long as you ensure that you follow the proper protocols when creating your Will, there should be little recourse for anyone attempting to contest it. On the other hand, if you’re the one looking to challenge a Will, you’ll need to identify any potential loopholes in drafting the Will in order to successfully challenge it.