Challenging Or Contesting a Will In Ontario
Wills in Ontario are under the jurisdiction of the Succession Law Reform Act. The person who is creating his last will and testament is known in legal terms as the testator. A will must follow the following criteria to be legal and binding. If any of these requirements are not met, the will can be successfully challenged.
The will must be in writing and witnessed by two unbiased witnesses, who are completely unaffected by the asset distribution as laid out in the will. With certain exceptions to age the testator and witnesses must be at least 18 years old and sign the document in the presence of each other. The will must be dated.
The testator must have the mental capacity to understand the seriousness of the undertaking and the implications the decisions made in the will could have on the distribution of the estate and the people included or omitted as beneficiaries. There must be no undue influence, on the testator in the making of the will. The stipulations within the will must be in accordance with the law.
If the above criteria, is not met, the will can be challenged.
People, who disagree with the contents of the will, have a right to contest or challenge it. In order to be successful, however, certain legal violations must be present.
Possible Grounds For Contesting A Will
- Ambiguous Wording
Spelling mistakes or errors in listing of assets or beneficiaries may cause a will to come under scrutiny and challenge. Vague choice of words can open the door to wrong interpretation. The way the will is worded is extremely important to avoid misunderstanding and future disagreement.
- Illegal changes
The will and any subsequent changes must be must be set out by the testator. Future changes require new signatures by the testator and two witnesses. Any errors or omissions in protocol can be disastrous.
If fraud is suspected the will can be challenged. Forged signatures and changes to the will made by someone else, constitutes fraud and the will is no longer legal and binding.
- Undue Influence
The use of trickery, coercion, bullying, lying, or bribery is illegal. If it is proven that the will was created under undue influence, the finished document can be contested.
- If The Testator Did Not Know What He/She Was Signing
While people are often asked for their signature they do not always read the paperwork first. If the testator did not understand that the documents he signed were his last will and testament, the document can be successfully contested.
- The Burden Of Proof Is On The Objector
It is the responsibility of the person who is challenging the will to prove that the final will and testament is not a legal and binding document. If the will is proven invalid, then the case may be treated under the laws of intestacy or if a previous legal will exists, it may be used.
- If The Will Is Unfair
In Ontario, a will can be challenged by anyone who felt they were wrongly provided for or left out as a beneficiary. This could include a spouse, adult children, dependents, close friends or children from a previous union.
What Are The Steps In Challenging or Contesting a Will?
A person who contests or challenges the will is known as the “objector”. It is the objector’s responsibly to provide legal proof of why the will is not valid.
Before starting the process of contesting a will the objector will need to find out whether or not a certificate of appointment has been issued. The certificate of appointment is a document that proves the executor, appointed in the will, has the right to distribute the testator’s assets upon death. If the certificate of appointment has been granted it means the will is in probate; in other words the will is publicly recognized as a legal and binding document. If the will is in probate and considered valid, the objector will need to file a motion for the probate papers to be revoked or returned. If the will is not in probate, the objector needs to begin the Estate litigation process by filing a notice of objection. After the notice of objection has been filed, the court will halt the granting of probate papers.
For more information, or if you are involved in a dispute surrounding a will; the Scott Furlong Ford estate lawyers are here to help. Our lawyers can advise you of your rights, assess the merits of your case and if required, litigate your estate related dispute in court.