Disinherited? What are your options?

The mere fact that you were left out or treated unequally in a Will may not be enough to contest or challenge it. The law in Ontario stands for testamentary freedom – meaning the freedom of testators to distribute their estates as they wish provided that their statutory obligations are fulfilled. However, there are multiple grounds for challenging a Will, which may apply to your circumstances. A person that “appears to have a financial interest” in an estate may contest or challenge a Will. To determine whether you have standing to challenge or contest a will contact a lawyer to access your circumstances.

What Grounds Can I Challenge a Will in Ontario

Lack of Testamentary Capacity

1. • The testator lacked testamentary capacity at the time he or she signed their Will. In Ontario testamentary capacity is defined as someone who has the ability to understand the following:
     • (a) the nature of the act of making a Will and its effects;
     • (b) the extend of the property of which he or she is disposing of; and,
     • (c) the claims of persons who would normally expect to benefit under a Will.
2. • The burden of proof of testamentary capacity is on the person seeking to uphold the Will; however, there is a presumption of capacity when there isn’t any evidence to the contrary.

Undue Influence 

2. • A Will will be set aside if undue influence is found. The Ontario Courts have said that testamentary undue influence requires coercion.
   • Persuasion is allowed, but where one person has the ability to dominate the will of another, whether through manipulation, coercion or outright but subtle abuse of power, undue influence will be found.
   • The burden of proof rests on those that allege it undue influence.
   • Circumstances that you may consider undue influence:
     • Deceased’s Will represents a dramatic change from a previous Will or the previous intentions expressed by the deceased;
     • Relationship of codependence existed i.e. deceased living with adult child and deceased changes Will to primarily benefit that adult child
     • Deceased experienced family conflict;
     • Deceased was socially isolated;
     • Deceased had experienced a recent death of their spouse;
     • The use of a new lawyer chosen by a beneficiary and previously unknown to the deceased;
     • The beneficiary was present at the lawyer’s meeting giving instructions to change the deceased’s Will.
   • Where the capacity of the deceased is at issue, chances are higher that undue influence may be inter-related as the testator. Evidence of undue influence may even rebut the presumption of capacity that would usually apply.

Fraud

3. • If the testator was induced to make a Will because of fraud that Will cannot stand – meaning the testator was tricked into signing it
   • It must be proved by the person alleging fraud that the Will would not have been made by the Testator apart from fraud

Lack of Valid Execution

4. • To have a valid Will it must be:
     • In writing;
     • Signed by the testator in the presence of two attending witnesses;
     • The two witnesses must witness the Will in the presence of the testator and in the presence of each other; and,
     • Must be 18 years old.
   • In addition, the witnesses cannot be beneficiaries in the Will
   • If the Will was not prepared, signed, or witnessed according to the law, you may be able to challenge it on this basis.

Insufficient Grounds to Challenge a Will:

• You were promised something, but that promise isn’t reflected in the Will
• Verbal promises do not count for anything in Ontario law.
• You thought you were entitled an inheritance
• Some people have a legitimate claim on an estate, particularly one’s spouse, a minor child, or any other dependants. Read on the claims of dependants here.

What Happens if a Will is Successfully Challenged?

It is important to understand that if you are successful in having a court rule that the Will is not valid, a previous Will, if one exists, will determine how the estate will be dealt with. Therefore, it is a good idea to know what provisions were made in a prior Will before you begin. If there was no prior Will, the deceased will be considered to have died intestate. This means that the estate will be dealt with under the Ontario Succession Law Reform Act. Again, it is important to know whether you are entitled to any of the assets under these laws, before you challenge the Will.

Since contesting a Will is expensive and time-consuming, it is a good idea to get legal advice before you proceed. Contact our office for a free 1-hour consultation.