The death of a relative or someone you had a relationship with can be challenging. Learning that the Will was not what you expected can raise suspicion about whether the Will was a true reflection of the deceased’s intention. In this blogpost we outline some of the circumstances under which a Will may be challenged.
Failure to Provide for Financial Dependants
Dependents are persons who may have rights to part of an estate, even if they are not included in a Will. The Succession Law Reform Act and the Family Law Act list certain people that may have to be provided for. Dependants can include your spouse, former spouse, common-law spouse, parent, grandparent, child, grandchild, brother and sister.
The court may also rule in favour of a person who was financially dependent upon the deceased (e.g., a child who the deceased treated as his or her own) if that person can show a need for financial support. The judge may allow the challenge and order what he or she determines to be a fair amount of money to be paid to that individual from the estate.
Failure to Provide for Debts Owed
If you were owed amounts under a contract (e.g., a separation agreement) or you provided services for which you were not paid for, then you may have legal rights to contest a Will as a party with a financial interest in the estate.
A legal challenge can be made if excessive persuasion is found to be an issue with respect to drafting of the Will. A Will that greatly deviates from previous Wills could be the result of undue influence by a relative or caregiver. The onus of proof is on those who challenge a Will but the courts will consider evidence which indicates the deceased may have been in a vulnerable position at the time and signed under pressure.
Improper Execution of a Will
The law in Ontario has several formality requirements that must be adhered to in preparing a Will. Among these are the requirements that the Will be signed by the testator in the presence of two independent witnesses (or no witness in the case of a holograph Will), and this helps to limit the risk of undue influence. These witnesses must have nothing to gain from bequeaths or gifts that are set out in the Will. As such, a spouse, child or spouse of a child are generally unacceptable witnesses.
Lack of Testamentary Capacity
Having testamentary capacity is another requirement to make a valid Will. Testamentary capacity means that the testator understands that he or she is undertaking to prepare a Will, has a disposing intention, and has a fairly good idea of what assets he or she has and their approximated values. The testator must have knowledge of the contents and consequences of making the Will. The testator must also be able to identify to whom he or she wishes to give his or her assets upon death and if he or she is excluding one or more persons who might normally otherwise be included.
Conflict with Existing Laws
A Will cannot be in conflict with existing laws in Ontario, which might occur if the Will was prepared in another country, where the laws may differ (e.g., on formalities of a Will). Or, a Will could be voided by a subsequent marriage if the Will was not clearly made in contemplation of the marriage. Or, it could happen that a gift in a Will is invalid because it is contingent upon committing an illegal act.
Occasionally, a party will seek to profit by fraudulently presenting a Will that was revoked or changed or not prepared by the testator at all. A fraudulent Will could include forged signatures, pages substituted with scanned and digitally altered copies, or it could have pages removed. Fraud can also happen if the testator updated his or her Will based on wrong information that was received. A Will that is drafted, duly executed and stored by an estate lawyer will ensure the original Will cannot be challenged on the basis of forgery or alteration.
Contesting a Will – In Practice
In the case of Neuberger v. York, 2016 ONCA 191, Mr. Neuberger had an estate worth over $100 million when he passed. His last Will, in 2010, provided for his two daughters but one daughter’s share exceeded the other’s share by approximately $13 million. His prior Will, in 2004, provided for his two daughters equally. Edie Neuberger, who was left the smaller share, maintained that the 2010 Wills were executed in suspicious circumstances and at a time when her father was subject to undue influence. The Court of Appeal ruled the Will could be contested in accordance with Rule 75.01 which empowers an estate trustee or interested person appearing to have a financial interest in an estate to make an application to have a testamentary instrument proved.
In the case of Spence v. BMO Trust Company, 2015 ONSC 615, Mr. Spence had a $400,000 estate he left to his estranged daughter he hadn’t seen in 50 years. Mr. Spence’s other daughter, Verolin Spence, went to court to argue that she had been disinherited due to discrimination. She claimed she had a good relationship with her father until the birth of her child fathered by a white man. Judge C.A. Gilmore overturned the Will and divided the property equally between the two sisters.
Shortly thereafter, in Spence v. BMO Trust Company, 2016 ONCA 196, the Court of Appeal judges overturned the lower court ruling, resulting in Ms. Verolin Spence receiving nothing from the estate. The appeal court ruled no one has the right to interfere with a person’s distribution of his own estate even if it’s discriminatory or “repugnant.” “Neither the Ontario Human Rights Code nor the Charter can dictate someone’s final, private, legal bequests.” Further, “a testator’s freedom to distribute her property is a deeply entrenched common law principle, and Ontario law accords testators the freedom to exclude children who are not dependants from their estate distribution”.
Get Legal Advice from Epstein & Associates, Will and Estate Lawyers in Barrie, Newmarket & Richmond Hill
If you have been unfairly treated or unlawfully excluded from a Will or you question the Will’s validity or feel that someone has used undue influence to benefit from the Will, you should seek legal advice. A Richmond Hill, Newmarket or Barrie estates lawyer at Esptein & Associates can assess if you have grounds to contest a Will. We can also prepare a professionally drafted legal Will as part of your estate plan that is unlikely to be later challenged. Contact our estate lawyers in Barrie, Newmarket or Richmond Hill for advice and assistance at 1-866-463-2266.