When a loved one passes away, their Will should lay out their wishes for their property and other aspects of their life to minimize disputes and represent their best interests. In some situations, families and friends cannot agree to the terms set out in the Will or the validity of the Will itself. This may lead to an individual contesting a Will.
Contesting a Will often leaves everyone involved to deal with lengthy and emotional legal disputes. If you find yourself facing a Will challenge, it is crucial to be well-prepared and seek the guidance of a lawyer with experience in estate law.
Understand the Grounds for The Challenge
The first step to fighting a Will challenge is to understand what the grounds for the challenge are. A Will cannot be challenged because individuals are unhappy with the terms laid out in the Will. If someone is contesting a will they must prove one of the following to be true:
- Undue influence
- Lack of capacity to make a will
- Mistakes or noncompliance with formal requirements (unsigned, not properly witnessed)
- Fraud
- Lack of provision for spouses or dependents
- Unclear testator intentions
Once you understand the grounds for the will contestation, your legal team can begin to create a defence strategy.
Who Can Contest a Will?
It is important to remember when fighting a Will contestation that only a limited number of individuals have the right to challenge a Will in Ontario. Contesting a Will is limited to those included in the Will or previous Wills, your spouse and children. Anyone outside of those groups cannot challenge a Will in Ontario. Your lawyer will help you determine whether an individual is able to challenge your loved one’s Will.
Gather Evidence
The next step in fighting a Will contestation is to build your case to support the validity of the Will. With the help of your legal team, you will need to secure relevant documents such as the Will, previous versions of the Will, and any related documents and legal agreements. Your lawyer may also seek out witnesses that can corroborate the capacity and willingness of the individual’s Will.
Try Negotiation
When contesting a Will or fighting the contestation, emotions will run high among family and friends. It is important to maintain calm and prevent any unnecessary disputes. After consulting with your lawyer, they may advise you that talking with your family can help resolve the dispute or suggest an alternative such as mediation to attempt to resolve the dispute outside of the courts.
Bring Your Case to Court
If you cannot come to a resolution through mediation or negotiations, you will bring your dispute to court. It is important to seek an experienced estate lawyer that will represent your own and your loved ones’ best interests throughout the proceedings.
In court, your estate lawyer will present the evidence, make arguments and question witnesses. Once hearing both sides of the case, the judge will assess the evidence and make a decision based on the facts.
While challenging the contesting of a Will can be emotional and stressful, it is important to not lose sight of the goal. To uphold the testator’s wishes. You should be demonstrating to the courts that the Will accurately reflects the testator’s wishes and that it was executed without undue influence or coercion. This is what makes a strong case to fight to contest a Will.
When dealing with contesting a Will or fighting a Will challenge you need a team of experienced estate lawyers you can trust on your side. Contact the Estate Lawyers at Epstein & Associates for your free consultation.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.