What is an Estate?
Estate, in its broadest sense, refers to all a person’s possessions (assets, liabilities, etc.) at the time of their passing. An appointed executor or administrator oversees managing the affairs of an estate.
What is a Will?
A legal document known as a “Last Will and Testament”, or a Will, specifies how you want to divide your possessions, such as real estate or personal property, when you pass away. It can also describe whom you would want to take care of your pets and minor children when you pass away. Your executor or estate trustee, the person in charge of concluding your affairs on your behalf, is also appointed in your Will.
Why might a Will be challenged?
The court’s stance is that a lawfully executed Will should be upheld, and the testator’s desires should be honoured and carried out. Thus, if specific family members were completely left out of the Will and received no inheritance, for example, the courts would not simply throw out the Will because an interested party believes they are entitled to an interest in the estate or feels that the provisions of the Will are unfair.
Typically, it is a family member who has been excluded from the Will or who has been left a smaller asset in the Will who will contest the Will. In order to contest a Will, the applicant must have a financial interest in the estate which requires that you have some form of financial claim on the estate.
A Will can be challenged on any of the following grounds:
- Incapacity: the person did not possess the required competency to execute their Will at the time of signing;
- Undue influence: A person may have been persuaded, tricked, or even forced into executing their Will at the moment they carried it out;
- Public policy: A Will can be challenged for public policy concerns as well. For instance, if a Will bequeaths everything to a hate group or excludes a child because of a parent’s religious beliefs or their choice of marriage, it is possible for the Will to be annulled.
- Lack of formalities: Legal formalities must be followed to evoke a Will. It must be properly witnessed and executed. Failure to follow the procedures outlined in legislation could also result in the Will being annulled.
However, Wills in Ontario may be contested on other grounds, such as mistakes in the drafting of the Will, fraud, or unclear intentions. The person contesting the validity of a Will is responsible for providing evidence that the Will is invalid or to be annulled. Since the testator is presumed to be competent and of sound mind when they executed the document, it would be necessary to provide proof to support a claim that the testator was not.
Sources:
Wills and Estates, 5th Edition, Derek Fazakas, May 2021, ISBN 978-1-77255-778-7 (Emond Publishing)
NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.