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The dynamics of contesting a will

Wills are an important part of the estate planning equation, and they are intended to allow for a smooth transition as one's final wishes are preserved. However, there are times when you may feel that some of the provisions in a will are not legally justified - so much so, that you may actually want to contest or challenge the will.

Communication is an important part of estate planning and the creation of a will, but many individuals take the process for granted because of how well they may assume they know their loved ones. So, often the first time you see what's in a loved one's will is after his or her passing. The hurt you feel may just add to your grief over losing someone you love, and you might start questioning several aspects related to the creation of the will.

The issues under which you can contest a will

A will may be challenged for a number of reasons. For instance:

  • It does not meet the formal requirements of a will (i.e. It was not properly witnessed).
  • You suspect someone exerted undue influence over your loved one while writing the will.
  • You question if your loved one knew what he or she was doing when constructing the will.

Was the testator in his or her right mind?

If you suspect your loved one wasn't in his or her right mind when writing a will, you could challenge the document. Perhaps your loved one was suffering from dementia. To make revisions that are legally acceptable in a will, individuals have to understand what they're doing. In other words, they must have a knowledge of their assets and an understanding of how the will deals with those assets.

What about coercion?

If you think a loved one wrote a will with inappropriate pressure from someone else - either the influence of another family member or someone who stands to benefit from the will unfairly - the court may seek to find evidence of any suspicious circumstances. If someone overly insists your loved one to write his or her will in a specific way, undue influence may be a rationale for you to contest the will.

If you initiate a challenge of your loved one's will, a number of evidentiary rules will become relevant regarding the burden of proof. An experienced Ontario lawyer can evaluate your circumstances and provide you with guidance both before and during the challenging of a loved one's will.

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Merovitz Potechin LLP
300-1565 Carling Avenue
Ottawa, ON K1Z 8R1

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