Will Challenges

The concept of testamentary freedom refers to a person’s freedom to dispose of their property upon death as they see fit. There are limits on a person’s testamentary freedom and these limits are often reflected in provincial law. In Ontario, the Succession Law Reform Act, establishes limits on a person’s testamentary freedom.

Part 1 of the Succession Law Reform Act sets out rules related to testate succession. Testate succession means that a person died with a Will. For a Will to be valid, it must be in writing. Further, the Will must comply with the formal requirements related to its execution otherwise it will not be valid.

As our society ages, we continue to see an increase in claims that challenge the validity of a person’s testamentary instrument, also known as the Last Will and Testament.

A challenge to a Will is a proceeding where the capacity of the testator is being challenged at a point in time; or which someone seeks to overturn the last will and testament of a deceased.

The common grounds for challenging the validity of a will are:

1. lack of testamentary capacity;
2. lack of approval or knowledge of the contents of the will;
3. the presence of suspicious circumstances or undue influence;
4. non-compliance with the requirements of due execution; or
5. fraud.

The Party who decides to challenge the Will must be able to show that he or she has a financial interest in the Estate. The term financial interest has not been defined in the Succession Law Reform Act. However, taking the common definition, financial interest has been defined as, an interest equated with money or its equivalent.

Generally, the Party who is responsible to propound (defend) the will, is the named Estate Trustee under the Will that is being challenged.

The onus of proof of testamentary capacity rests on those propounding the will who must establish, on the balance of probabilities, that the Deceased had the requisite level of testamentary capacity at the time the will was executed.

The concept of a testamentary capacity in Canadian law finds its origins in the English decision of Banks v. Goodfellow. In Banks, the Honourable Justice Cockburn held,

It is essential to the exercise of testamentary power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, prevent his sense of right, or prevent the exercise of his natural faculties

The test for testamentary capacity was confirmed by the Ontario Court of Appeal (“OCA”) in Re Schwartz. In Re Schwartz, the OCA held that in order to determine testamentary capacity the testator must be sufficiently clear in his/her understanding and memory to know, on his/her own, and in a general way the following;

1. the nature and extent of his/her property,
2. the persons who are the natural objects of his/her bounty and
3. the testamentary provisions he/she is making;

The testator must also, be capable of,

4. appreciating these factors in relation to each other; and,
5. forming an orderly desire as to the disposition of his property.

During the course of a Will Challenge, the Parties may be entitled to review the records from 3rd Parties related to the Deceased. For instance, Parties to a will challenge may be entitled to review the Deceased’s,

• Medical Records;
• Lawyer’s File related to the preparation of the Will; and
• Financial Records.

It is extremely important that prior to receiving instructions from any testator all estate lawyers take necessary steps to determine whether or not the testator is capable to provide instructions and again prior to the testator executing their Last Will & Testament.

Why Choose Us

At Bickhram Litigation we take all cases related to your loved one’s testamentary instruments very seriously. We represent Client’s who wish to object to the validity of the last will and testament. Also, we represent Estate Trustees who are tasked with the responsibility of propounding (defend) the last will and testament. For more information on will challenges, please contact us for a complimentary consultation.


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