Contesting A Will

At Merovitz Potechin LLP, our estate litigation lawyers are dedicated to helping you and your family resolve your dispute. We provide personal service and clear guidance in all types of estate litigation matters.

Our lawyers represent individuals and family members in Ottawa who are involved in challenges to a will.

Family members, dependants and beneficiaries may challenge a will when they believe that the contents are unfair or inadequate, there was coercion, or the document is fraudulent or is otherwise invalid. The three grounds on which a will can be contested are:

• Undue influence or suspicious circumstances
• Failure to comply with formality requirements
• Lack of testamentary capacity and knowledge and approval of contents of the will

Testamentary Capacity And Knowledge And Approval Of Contents Of The Will

The test of “knowledge and approval” relates to whether the creator of the will was fully aware of the contents included in the will, especially the disposition section.

Testamentary capacity relates to whether the person making the will has an understanding of:

• What it means to make a will
• The extent of his or her property
• The relationships he or she has with the individuals who might be expected to receive a portion of the estate
• Claims of people whom he or she is leaving out of the will

Challenging a will based on a lack of capacity relates to lack of testamentary capacity. A will can be challenged if the creator did not know or approve of the contents of the will or lacked the capacity to understand what the will said. These types of contests are possible even when the will creator was an intelligent person who understood the nature of his or her assets, but did not properly appreciate the effect of the will.

Undue Influence Or Suspicious Circumstances

Undue influence is when the creator of the will goes against his or her wishes and signs the will as it reads because of extreme coercion or pressure exerted by another person. Suspicious circumstances can relate to lack of testamentary capacity.

Formality Requirements Not Observed

For a will to be valid, the formal requirements include that it:

• Is written (a tape-recorded or videotaped wills are not valid)
• Is signed by the testator/testatrix (or signed by another person for the testator/testatrix in his or her presence)
• Is witnessed by two witnesses who must be in the room at the same time, when the testator signs the will

Most often, errors occur with respect to a will not being signed or witnessed properly by independent parties. Beneficiaries who witness a will cannot obtain their request.

Commencing Legal Proceedings

To contest a will in Ontario, you must first ascertain whether the Certificate of Appointment of Estate Trustee with a will (i.e., probate) has been granted, as this certificate establishes the will as a valid document that is the last will and testament of the deceased.

If the Certificate of Appointment of Estate Trustee with a will has not been granted, then a Notice of Objection form should be filed with the court registrar and then the process will not proceed until the Objection is dealt with. The notice of objection remains on file for three years (or for additional three-year periods if it is renewed by the objector).

If the Certificate of Appointment of Estate Trustee has already been granted, however, then the process is more complicated. A motion for the return of the Certificate of Appointment must be brought before the court, as well as a motion for directions to challenge the will.

Work With Our Lawyers

If you are concerned about the validity of a will that a loved one signed, contact Merovitz Potechin LLP to discuss your legal options. With cases such as these, it is always better to move quickly before the estate is distributed. Call 613-563-7544 or contact us online to arrange a consultation.

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