Challenging a Last Will and Testament

One of the questions we are regularly asked at LegalWills is “can anybody challenge my Will”. And the short answer is yes, but there are very specific reasons how and why a challenge is likely to be successful or not.

It is not uncommon to see news reports of Wills being challenged; a quick internet search brought up this one and this one . The common feature of these two disputes is that they are a claim based on the mental capacity of the testator (person writing the Will). This is perhaps the most high profile reason for a Will contest, but in general there are only a few ways that a Will can be successfully challenged.

Mental capacity: The person making the Will must understand that they are indeed writing and signing their Will. They should understand the contents of the Will but beyond that they should understand the value and nature of their assets, the nature of their relationships (including which family members they have), and the Will should reflect this understanding. They should also be free of any delusions that may influence the distribution of their property. One important note on this one is that it cannot simply be inferred based on an age; a challenger cannot simply say “he was 97, he didn’t know what he was doing”. There must be some evidence that the individual did not have full “testamentary capacity”.

Undue influence: This is different to mental capacity as illustrated nicely by this court case.  In order to contest a will on the ground of undue influence, it must be shown that the testator did something contrary to his or her true desires. It does not have to be shown that the testator was of unsound mind to prove undue influence. It is a matter of coercion and the main reason why a beneficiary cannot be a witness to the signing of a Will. Undue influence is probably very common but a difficult thing to prove; there are also many shades of influence and so successful challenges depend on the court’s judgement and even then can often be appealed.

Improper execution of the Will: This varies by jurisdiction but in general the document must be signed in the presence of two or three witnesses (ignoring for now the special case of holographic Wills which we discussed in a previous post). Of course, a witness cannot be a beneficiary and in most jurisdictions it goes beyond that; a spouse of a beneficiary cannot be a witness or anybody else who is seen to directly benefit from the contents of the Will. Some jurisdictions require an initial on each page to protect against pages being removed and inserted. There are many variations on this theme including multiple Wills being presented, codicils and amendments to existing Wills, handwritten notes appended to Wills and verbal promises.  It is this type of challenge that is most commonly cited as a reason for not preparing one’s own Will, but as we have previously noted, a Will created using a service such as the one at LegalWills is perfectly valid if signed and witnessed appropriately.

Fraud: This can take many forms from the falsification of documents including forged signatures but also includes situations where the testator made a change to the Will based on misinformation given by a beneficiary.

No provision for dependents: This varies widely across jurisdictions but there are sometimes people who have to be included in a Will. In most jurisdictions dependents must be taken care of, and a spouse has a claim to a part of the estate. And of course we saw that in BC, adult children can challenge a Will if the division of property is considered to be unfair.

So of course, anybody can challenge a Will, but challenges are highly unlikely to succeed unless one of these claims can be proven. The most common reason we hear for wanting to challenge a Will is that the testator verbally promised something which was not reflected in the Last Will and Testament. Sadly, this is highly unlikely to result in a successful challenge even though it can be a very emotional disappointment to the people concerned.

It is important to note that a testator preparing their own Will, or using software to create a Will is not a basis of a challenge unless the challenge is based on one of the preceding situations. So the fear of a Will challenge should not in itself be a reason to steer away from a service like LegalWills which helps you to prepare your own Will.

6 thoughts on “Challenging a Last Will and Testament

  1. Mike says:

    If you think there is a chance somebody will be unhappy with your your wishes and will try to challenge your Will in court, it is a really good idea to get legal advice before you make your Will.

  2. Thanks for the comment Mike and we would agree; if you are planning on disinheriting a spouse for example, we would definitely recommend seeking legal advice.

    Any challenge is likely to be expensive and should be avoided where possible.

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