3 Things You Should Know About Challenging A Will

24 March 2015
 Categories: Law, Articles

Shock and surprise at the reading of a will is a common plot device in books and movies. In fiction, wills often reveal shocking secrets, rehash old grievances, and inexplicably exclude children, family members, or friends who were seemingly close to the deceased. In reality, most will readings are nowhere near that dramatic. However, occasionally it will happen that the loved ones of the deceased feel that something is wrong with the will. In that case, the court system offers a procedure for challenging and changing the will. If you're considering contesting a will, here are some things you should know about the process.

You Need Standing

Only certain people can challenge a will. These are people with standing – basically a legal right to make a challenge to the will because of who they are. There are usually only a limited number of people who have standing to challenge any given will. Just because you were close to the deceased, or even related to the deceased, doesn't guarantee that you'll have standing.

You have standing if you would have stood to legally inherit if the will that you're challenging did not exist – this usually applies only to spouses or children and, sometimes, to parents or siblings. You also have standing if you were named in a previous version of the will but were cut out of the version in place when the person whose will it is passed away.

You Need A Reason

Your reasons, or grounds for filing a claim, are also essential. Just disagreeing with the will is not a good enough reason to challenge it. There are a few legal reasons why a person with standing might want to challenge a will. These reasons include:

  • Improper Execution – When the will wasn't properly witnessed, signed, or prepared, and you believe that it may not be legally enforceable.
  • Fraud – When you believe the will was forged, or that changes were made without the knowledge of the deceased.
  • Lack of Mental Capacity – You believe that the diseased was mentally incapacitated at the time the will was created.
  • Undue Influence – You believe that the deceased was pressured or tricked into leaving you out of the will.
  • No Provision for Dependents – Depending on where in Canada you live, estate law may entitle you to part of the deceased's estate if you're a spouse or dependent.
  • Incorrect Interpretation – When you believe that the will is being carried out in a way that was not the intent of the deceased, and that their words were misinterpreted.

Of course, you would need to be able to present evidence to support any of these claims that you plan to use.

If You Don't Win, You May Have To Pay

In the past, costs for a challenge to a will were routinely deducted from the estate in question. Lawmakers reasoned that it was in the best interest of the public for will disputes to be explored and settled and errors in inheritance to be corrected, and that the threat of having to pay legal fees and court costs might discourage honest challenges. However, that view is changing, thanks to a recent rise in contested wills – the number of will disputes rose by 100% between 2006 and 2010.

Today, if you lose your claim in court, not only will you not get the inheritance you were hoping for, you may be ordered to pay the other party's legal fees as well as your own. Because of this change, it's important to consider carefully whether your challenge is worthwhile, and whether it's potentially winnable.

If you think that you have standing and grounds to challenge a will, you should consult a wills lawyer before proceeding. A lawyer can advise you about the viability of your challenge and help you make a decision about whether it's worth pursuing in court.