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Understanding the Process of Contesting a Will

In this article:

    Contesting a will isn’t easy, but that doesn’t mean it isn’t doable. If you ever find yourself in the position of needing to contest a will, understanding how the process works is essential. 

    In this guide, we'll unravel the intricacies of the will contest process and shed light on why someone might contest a will and why understanding the legal process can help you protect inheritance rights as well as honour the deceased’s wishes.

    What does it mean to contest a will?

    A will contest or challenge is a formal objection raised against the validity of a will. It is based on the argument that the will in question does not reflect the actual intent of the testator (the person who made the will) or that the will is otherwise invalid.

    When the will contest is filed in probate court, it is also referred to as probate litigation.

    Who can contest a will?

    Contesting a will in Canada is not an open invitation for anyone to challenge the document. There are specific criteria determining who has the standing or legal right to contest a will. 

    While these criteria may vary slightly across provinces, people who may be allowed to contest a will include:

    • Family members of the deceased
    • A spouse of the deceased
    • Those named in the will
    • Creditors

    In Ontario, for example, rule 75 of Rules Of Civil Procedure states that anyone who has financial interest in the estate in question has the ability to contest the will.

    Learn more about contesting a will in Ontario →

    What are the grounds for contesting a will in Canada?

    If you are a person with a valid interest in the estate, there are several grounds that can serve as a foundation for challenging the will: 

    • The person who made the will was proven not to have the mental capacity to do so. This is called lack of testamentary capacity and takes into account the testamentary capacity of the deceased at the time of creating the will and whether they had the mental ability to understand the consequences of their decisions. If it can be proven that the testator lacked the requisite mental capacity when crafting the will, the will becomes susceptible to contestation. 
    • The person who made the will was pressured or exploited to do so. This is called undue influence and considers if a person or multiple people may have exploited their relationship with the testator, coercing or manipulating them into making decisions against their true wishes. 
    • The will is proven to be “fake”. If it can be proven that fraudulent activities, such as forgery, misrepresentation, or deceit, played a role in the creation or execution of the will, it becomes a solid ground for contestation. 
    • The will does not meet the requirements to be valid. This is referred to as improper creation and execution and challenges the legal validity of the will by stating that the will in question was not made based on legal requirements, and is therefore invalid. 

    The Process for Contesting a Will

    Just like creating an estate plan, contesting a will is also a multi-step process.

    Gather Evidence

    Begin by collecting evidence supporting your claim, whether it's medical records indicating a lack of capacity or proof of undue influence.

    Seek Legal Advice

    Consult with a professional such as an estate litigation lawyer who is more knowledgeable about invalid wills. They can assist in determining the viability of your ability to contest, your claim, and your evidence.

    File a Notice of Objection

    If you have grounds to pursue a will challenge, it's time to file a notice of objection. This is the key document that will initiate a will challenge. 

    If the notice of objection is valid, the Estate Registrar will freeze the estate until the challenge is resolved.

    Remember, if you file a notice of objection and do not properly provide detailed reasons for your objection, it will be rejected and, depending on your province, you may be limited in your ability to contest in the future. This is why working with a lawyer is important.

    Negotiation and Court Hearings

    At times, the parties involved and related to the deceased may be asked to attempt negotiation with the person who filed the notice of objection before going forward with a trial. This can be more cost-effective and efficient than the alternative.

    If negotiation fails, then the matter will go to court. 

    Settlement

    The court may either uphold the validity of the will, reject it entirely, or suggest modifications. In light of whatever decision is reached, the court will provide instructions on how to proceed with the distribution of the estate.

    Roles and Responsibilities

    Now, let’s discuss the key roles and responsibilities of individuals involved in the process of contesting a will in Canada.

    Executor Responsibilities

    Duty to Administer the Estate: The executor is responsible for administering the deceased's estate as per the terms of the will. This includes managing assets, paying debts, and distributing assets to beneficiaries.

    Defending the Will: If the will is contested, the executor may need to defend its validity. This involves presenting evidence to the court supporting the legality and authenticity of the will.

    Neutrality: The executor is expected to act impartially and in the best interests of the estate. They should not take sides in the dispute but rather make sure that the deceased's wishes are carried out.

    Rights of Beneficiaries

    Right to Contest: Beneficiaries, those who benefit from a will, are entitled to contest a will if they believe it is invalid. Grounds for contesting may include lack of testamentary capacity, undue influence, fraud, or improper execution of the will.

    Receiving Information: Beneficiaries are entitled to receive information about the estate's assets, liabilities, and distribution process. The executor must keep beneficiaries informed throughout the proceedings.

    Other Interested Parties

    Creditors: Creditors have the right to be informed about probate and can make claims against the estate to satisfy outstanding debts.

    Spouses and Dependents: In some provinces, spouses and dependents may have specific rights, including the right to a portion of the estate even if not provided for in the will.

    Legal Professionals

    Lawyers for Contestants: Those contesting a will often hire lawyers to represent their interests. Lawyers can help gather evidence, present legal arguments, and guide their clients through the legal process.

    Lawyers for the Estate: The executor may also engage legal representation to defend the will's validity. Estate lawyers can provide advice on the legal aspects of the case and represent the estate in court.

    The Court

    Decision-Making: Ultimately, the court will decide the validity of the will based on what evidence is presented. 

    Seeking Legal Help

    Because the process of contesting a will involves complex legal issues, and you may face significant emotional stress and financial consequences, having a lawyer to help guide you can be beneficial. 

    Lawyers help navigate the legal complexities of contesting a will, gathering evidence, and abiding by statutory deadlines. For example, in Canada, there can be specific time limits in which a will can be contested, such as within two years of when reasonable grounds for the challenge are discovered. Missing these deadlines may result in losing the right to contest. 

    In addition to being able to navigate large or complex estates, a lawyer can also make sure that beneficiaries' rights are protected and that they receive the inheritance to which they are entitled.

    Common Challenges in Contesting a Will

    It's important to note that will disputes can be a complex and emotionally charged process. Many of those involved in these cases loved, knew, or were connected in some way with the deceased. Many may still be grieving.

    As such, the process of contesting may cause rifts in family relationships, generate stress and conflicts, or magnify issues surrounding those involved.

    Remember to take time to find the support you need, when you need it.

    Other challenges of the contesting process include:

    • Legal complexity and interpreting the will*
    • Finding evidence to prove the will is invalid
    • Navigating time constraints
    • Dealing with large and complex estates
    • Considering different jurisdictions (other provinces or international)
    • Costs of the legal process and concerns of depleting the estate’s assets
    • Making sure the executor stays neutral
    • Understanding that court proceedings are typically public record

    *Curious about what a will looks like? See a sample will.

    How long do you have to contest a will in Canada?

    The timeframe for contesting a will varies, though generally, it’s within two years of when reasonable grounds for the challenge are discovered. Typically, it starts when the will’s contents are revealed.

    How much does it cost to contest a will in Canada?

    The cost of contesting a will depends on the case and the jurisdiction and can vary from a few hundred to a few thousand dollars. Costs generally fall into three categories: legal fees, court fees, and expert witness fees. 

    If you choose to work with a lawyer when contesting a will, you will either be charged a flat fee for the will contest or an hourly rate. If you use a lawyer, the lawyer will pay the court filing fees, fees to serve documents, and expert witness fees and add them to their bill at the end of the case. 

    If you do not choose to use a lawyer, you will be responsible for paying court and expert witness fees yourself. 

    But whether you pay for everything or not depends on the outcome of the case:

    • When your claim is successful, your legal costs are most likely paid out of the estate. 
    • If your claim is unsuccessful but has merit, you may still be reimbursed from the deceased’s estate.
    • If your claim is unsuccessful and deemed without merit, you may be ordered by the Court to pay not only your own costs but also the successful party’s legal costs.  

    How easy is it to contest a will in Canada?

    Contesting a will is inherently difficult, requiring the ability to work around legal complexities, gather substantial evidence to support your claims, and overcome the heavy emotional aspects involved. 

    Seeking professional legal advice on wills from a estate litigation lawyer is recommended for anyone considering contesting a will so they can navigate these challenges effectively.

    What are the chances of contesting a will and winning?

    A will challenge is only as strong as its evidence. If you have a solid case with evidence to back the grounds on which you are contesting the will, such as proper documentation and expert witnesses, your case has a higher chance of success. 

    If not, then it is more likely for the contest to be dismissed.

    How to ensure your Willful will is defensible 

    It's important to remember that any will can be contested. A will prepared by you, the will-maker, whether handwritten, made with an online platform like Willful, or even prepared by a lawyer, can be contested. But contesting a will must be initiated by the person who believes the will is invalid or unlawful and the burden is on the person contesting the document to prove their case.

    All Willful documents are created using templated clauses from our legal advisors in each province, which are reviewed regularly. We also work closely with regulatory bodies, like the Law Society of Ontario, who have vetted our documents so that our customers can feel confident and have peace of mind when using Willful.

    So as long as you complete your Willful will based on the recommended legal guidelines, including signing and witnessing it, your will is legal, valid, and defensible.

    Another step to ensuring your will is more defensible is to speak to your loved ones about your documented wishes. Talking this through with them during your lifetime allows you to explain your decisions and prevent surprises later.

    Remember that not every will is contested, just like how not every will requires probate. The same goes for living trusts, which are different from wills but can also be challenged. 

    Your will is a key aspect of your estate plan and end-of-life wishes. Making a will is a way for you to look after your assets and loved ones, and give them peace of mind at a time when they may very much need it. 

    With Willful wills, you can be reassured that not only is your will affordable and easy to make, it is also legally valid according to the requirements of your province and country.

    Start your will today →

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