Legal Grounds For Will Challenges

May 16th, 2018 by Justin Winch

The loss of a loved one can be a devastating and overwhelming experience. While mourning a loss, you may find yourself scrambling to ensure that all of your family’s affairs are in order, especially if you are listed as an Executor, Administrator, or Trustee of an Estate or Trust for the deceased. However, many individuals have also experienced being left out of the deceased’s will and believe that they are entitled to a share.

If someone comes to that realization, it is difficult to determine where to begin, as the law surrounding challenges to a will is complicated. Devry Smith Frank LLP’s (DSF) Estates Litigation lawyers are able to advise clients on how to proceed with your matter and provide advice and support from start to finish, looking out for your best interests, to achieve the best result when challenging the validity of a will.

There are three common types of legal grounds in which you may challenge the validity of a will:

  1. If the will fails to comply with the Succession Law Reform Act. Ontario requires full compliance with the formalities of execution. Wills prepared by legal professionals will comply with these rules, while a majority of home-made ones do not.
  2. If the deceased had the capacity to make the will.
    • Did the deceased know what property and assets they have and that the will would be disposing of these assets after their death? Did they have a true understanding of any obligations they may have to spouses and children?
      • A challenge on this ground would require hiring expert medical witnesses to review medical records and retroactively assess the deceased’s mental capacity at the time the will was made.
  1. Whether there were any suspicious circumstance surrounding the drafting of the will or whether the deceased was under any undue influence. The will must represent the true intentions of the deceased.
    • Undue influence can occur when a person feels compelled to honour the wishes of someone making a direct or implied threat, or attempts to leverage a persons weakened state to their advantage.
      • A child convinces a parent to remove a sibling from the will.
      • A will signed on the deceased’s death bed leaving everything to a caregiver may give rise to a challenge on the grounds of suspicious circumstances.

If you are experiencing any of the issues mentioned above, it is important to seek qualified legal advice from an Estates Litigation lawyer.

For further information or assistance, please contact Estates Litigation lawyer Justin Winch directly at (416) 446-3309, or by clicking on his profile located on the right of this page. If you would like to contact our office directly, please call (416) 449-1400 and ask to speak to an Estates Litigation lawyer.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

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