The death of a loved one is always a difficult period. In addition to the grief and mourning process, some may be shocked to discover that the Last Will and Testament (if any exists at all) did not include what they had believed it would.
When these questions arise, often the first question asked of a lawyer is what will need to be done in order to overturn the Will.
This might seem like a simple question, but there are various overlapping factual and legal questions that have to be considered.
Challenging a Will – Legal Basis
In order to challenge a Will you must have some recognized financial or legal interest in the Estate. This can come in many forms but would most often come in the form of a familiar relationship such as a child or spouse, or as a beneficiary of the estate.
Furthermore, there must be sufficient grounds to challenge the Will, which commonly include (but not limited to):
- Lack of Testamentary Capacity – that the person making the Will was not mentally capable of giving his or her last wishes at the time that the Will was signed;
- Undue Influence – that someone may have influenced the person making the Will against his or her wishes;
- Lack of Knowledge or Approval – that the person making the Will did not actually have knowledge of what the contents of the Will stated; and/or
- Improper Testamentary Document – that the document being put forward as the Will is somehow improper. This could be that it was not properly signed, it was not properly witness or that the signature is not authentic or is a forgery.
Challenging a Will – Evidentiary Basis
However, just because there may be grounds to suspect that a Will may not be valid at law, the objector to a Will need to show some evidentiary basis to support the objection in order to proceed with a Court based objection.
Ontario Courts have repeatedly stated that in order for an objection to a Will to proceed past its initial stages, the objector must show some evidentiary basis to support the nature of the objection. While the threshold to show some “evidentiary basis” is not high, the Court will not allow an objection to proceed based on solely on speculation.
An objection is an inherently disruptive process to the administration of an estate, and the Courts have expressed caution against estates being mired in frivolous objections devoid of merit.
For those considering an objection to a Will the warning is clear: when it comes to the evidence, don’t come empty handed.
More information? We’re here to help – litigation@wardlegal.ca.
This WARDS LAWYERS PC publication is for general information only. It is not legal advice, nor is it intended to be. Specific or more information may be necessary before advice could be provided for your particular circumstances.