Challenging a Will in Ontario

by | Mar 20, 2015 | Wills & Estate Law

Challenging a Will in Ontario

After the death of a loved one, there are many practical and legal matters that must be attended to during the period of grief. Oftentimes, the settling of the deceased’s estate can be the most emotionally taxing, even when one has expectations of what the Last Will and Testament includes. But what happens when the bereaved are not only surprised by the will’s contents, but believe the document to be fraudulent, coerced, or otherwise invalid?

The frequency of disputed wills is on the rise. In the media, people contesting a will are often painted as enraged and entitled children or gold-digging spouses. However, the real reasons for contesting a will are often much more complicated – almost as complicated as the judicial process itself. If you believe that your loved one did not truly intend the contents of hisher last will, there are several ways to prove so in court, and as a result, have the will deemed invalid.

There are three main arguments used when contesting a will:

  • Undue influence
  • Lack of mental capacity
  • Legal problems with the will itself, such as improper signing, witnessing, or other formalities not observed in the drafting process.

While the third argument is largely self-explanatory, it only applies to a small number of cases. The first two arguments, while more common, are also far more difficult to prove in a court of law.

When arguing undue influence, the contester of the will is claiming that one party, generally the party benefiting most from the will contents, exerted so much control over the deceased that the deceased was virtually unaware of the real meaning of the words in the will. In such cases, two separate burdens of proof are seen: the person propounding the will must supply evidence of testamentary capacity, knowledge, and approval, while the person contesting the will must be able to prove undue influence. In such cases the judge must examine all evidence and attempt to discern the testator’s reasonable intentions.

Similarly, the argument of mental incapacity can be nebulous and complex. However, rather than relying on evidence regarding relationships between the parties involved, the judge must determine whether the testator was able to understand the nature and effect of the will, the extent of property in question, and the claims of those who would expect to benefit from the will. Such judgments frequently require medical testimony in addition to that required for an undue influence argument.

Entering into a complicated legal battle over a will can be overwhelming. Therefore, legal advice is strongly recommended.

If you have concerns surrounding your loved ones’ last will and testament, contact Mackesy Smye via our secure online contact form, or call us at 1-905-525-2341 to speak with one of our experienced will and estate lawyers.


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