Before you jump headfirst into challenging the Will of a family member you should consider whether or not you have sufficient evidence. There is a recent Ontario Superior Court case, Graham v. McNally Estate and Blais, where the Court found that the Respondent did not present sufficient evidence to show that the deceased lacked testamentary capacity to execute her Will.
There are different grounds to challenge a Will in Ontario, some of them include: (a) testamentary capacity; (b) undue influence; and (c) suspicious circumstances. The individual challenging the Will has the responsibility to prove that the Will is invalid as the Courts assume that the deceased was competent and had capacity when they executed the Will and proving otherwise requires evidence.
One of the main Will challenges is testamentary capacity which is defined as the legal principle that the deceased must have the mental capacity to execute a Will. In other words, they are required to understand the nature of making a Will and the extent of the property given in the will among other things.
Another ground to challenge a Will is claiming the deceased was unduly influenced around the time the Will was prepared and executed. This ground is the premise that someone influenced the deceased to an extent that was “so overpowering that the document reflects the Will of the influencer and not that of the deceased” as stated in Graham v. McNally Estate and Blais.
Lastly, you can challenge a Will based on suspicious circumstances around the preparation and execution of a Will which can cause the Court to consider whether the deceased knew and approved of the contents of the Will and had the necessary testamentary capacity to execute it.
When considering whether you should challenge the validity of a Will of a family member you should keep in mind that in order to successfully challenge a Will you need to show sufficient evidence that they did not have the necessary capacity to execute the Will as written. Whether or not you are successful in a challenging a Will’s validity will depend on the evidence.
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.