Contesting a Will

Our clients often have questions about whether a Will may be contested in court because someone is unhappy with the gift received or received no gift at all.  For example, Jane has little to no communication with her son and wants to leave all of her estate to her daughter with whom she has an excellent relationship.  Both of Jane’s children are adults and financially independent.  Can Jane’s son successfully contest her Will?

In order for Jane’s son to contest her Will, he will need to bring an application to court to have the Will struck down as being invalid.  A Will may be invalid if the person who made the Will did not have the necessary legal capacity or was unduly influenced when making the Will or there are problems with the formalities of the Will such as lack of signature or improper witnessing.

To have the necessary legal capacity to make a Will, a person needs to understand  what property he or she owns, any obligations he or she has, and the nature and effect of making a Will.  Undue influence is where a person is forced or persuaded to make a Will he or she did not really want, and usually results in a Will that is advantageous to the person using force or persuasion.

Proving that a person did not have the necessary legal capacity to make a Will or was unduly influenced when making a Will is a difficult task without clear evidence and these cases often do not succeed.  Also, these types of court applications are costly and lengthy as judges have to interpret and rely on a significant amount of evidence such as doctors’ reports, family history, and witness accounts.

Most people who initially consider contesting a Will change their minds when they realize how difficult it is to succeed with this type of court application.

It is important to note that a person may bring a court application for what is often referred to as “dependent relief”, which is different from contesting a Will.  An application for “dependent relief” does not contest the validity of the Will, but requests that more of the estate be given to a dependent of the deceased. This type of court application will be discussed in more detail in future blog posts.