Contesting a Will: Why Hire an Estate Lawyer?
Whether you are contesting a will or defending a will, it can be an emotionally charged experience. It can also be a time-consuming and costly process. Wide-spread use of do-it-yourself will drafting kits increases the likelihood of a will challenge after the person has passed away.
The greatest challenge when you are considering contesting a will is that it’s impossible to determine the last wishes of the person who is no longer alive. This person cannot provide an explanation or any guidance. If you find yourself involved in a will challenge, it’s imperative to retain experienced estate litigation counsel.
Charles Ticker has helped many clients with various and complex will challenges. He is also a qualified mediator. His mediation skills are very practical in Toronto, Ottawa, Windsor and the County of Essex where contesting a will is subject to mediation before trial.
Contesting a Will: How Can a Will Result in a Dispute?
1. Unequal treatment of beneficiaries: A beneficiary who was expecting to receive something in a will but did not is likely to challenge the will. The same applies if a beneficiary received less than the beneficiary believed he or she should have received. Either scenario may result in the beneficiary contesting a will in order to invalidate it.
2. Out-of-date estate plan: If the will was created a long time ago a will challenge may ensue. If there are many new children or grandchildren born after the creation of the will, it is likely that a will challenge may follow. For example, a will leaving gifts to the grandchildren may not have been amended to recognize other grandchildren born later.
3. Improper execution: A will might be successfully challenged on the grounds that it was not properly signed or witnessed. There are specific requirements that must be followed for a will to be valid. Some of these requirements are found in Section 7 of the Succession Law Reform Act.
4. Lack of testamentary capacity: A dissatisfied beneficiary might argue that the testator was infirm, or otherwise lacked capacity when the will was made. This may occur if the testator developed a lack of capacity close to the time of the creation of the will.
5. Undue influence: It might be argued that the testator was improperly pressured by another beneficiary or some other person. These kinds of allegations may arise in situations where siblings are arguing or have exhibited acrimonious tendencies toward each other.
6. Wrongly named beneficiary: Although this happens rarely, if a beneficiary is wrongly named, the will may be open to a challenge from another beneficiary with a similar name. This may happen with if the beneficiary is an organization, and another organization has a similar name (for example, a charity).
7. Lack of knowledge or approval of the contents of the will: This defect can be the result of an innocent mistake or deliberate deception. If a will is unclear it may be argued later that the testator did not approve the contents of the will.
8. Improper designation of beneficiary: Problems can arise if the designation is inconsistent with that on a registered retirement savings plan (RRSP) or insurance policy.
Charles Ticker has represented clients in various complex will challenges. He has 30 years of experience in estate litigation. If you are an executor confronted with a will contest, Charles Ticker can also provide the skilled and experienced representation you need.
Contesting a Will Due to Unequal Treatment of Beneficiaries
The unequal treatment of children as beneficiaries in a will is likely to result in disgruntled siblings engaging litigation after the death of a parent. There are even cases when a parent has vowed to disown a child and prefers to leave their entire estate to charity.
The testatrix mother in Minkofski v. Dost Estate 2012 ONSC 5598 was estranged from her only son and chose to leave him only $200 in her will. She left the rest of her $250,000 estate to various charities and to one of her friends. When the estate trustee applied to probate the will, the son filed an objection.
While the filing costs alone were not expensive, the son attempted to represent himself in Court and to address complicated issues such as whether the testatrix had capacity to make her will, whether she was under undue influence when she made it, and the evidence about her true intentions. Ultimately the disinherited son lost the case, the will was declared valid and the judge held him responsible for costs.
It is prudent to seek legal advice from an estate lawyer when contesting a will.
Contesting a Will Due to Lack of Testamentary Capacity
The person seeking to prove the validity of the will strives to show that the will for which probate is sought represents the true intention of the testator. The person has to prove to the Court that the testator had mental capacity to make a will at the time it was executed. Determining whether someone had capacity years ago is complicated.
The legal test for mental capacity to make a will is different from the legal test for mental capacity to make a power of attorney, to get married, or to enter into a contract.
Charles B. Ticker has helped clients with estate litigation matters for more than 30 years. Charles Ticker can guide you through a will challenge and explain what type of evidence is required in your particular circumstances.
The information on this website is not legal advice. It is for informative purposes only. To schedule an appointment, call Mr. Ticker at: 1-866-677-7746. A lawyer can only be retained after a consultation where all the details of the matter and retainer are discussed.