Grounds for Contesting a Will

Wills, Wills Variation | May 26, 2022 | Written by Natasha Nair

The loss of a family member can be a stressful and a difficult time for anyone, especially if multiple parties have grievance with the will of the deceased. Understanding the valid grounds for contesting a will can help you determine if you have a case and if it is worth pursuing. That is why the wills, estates, and trust law experts at Linley Welwood have compiled a list of the most common grounds for contesting a will.

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4 Examples of Grounds for Challenging a Will

The following situations can serve as sufficient grounds for contesting a will:

1. Invalid Execution

If the will was written without the help of a lawyer or notary public, there is a chance that it could be invalid. For a will to be considered valid, it must be:

  • In writing.
  • Signed by the testator in the presence of two witnesses.
  • Signed by the two witnesses in the presence of each other and the testator.
  • Written by someone who is of legal age.

It is also important to note that the witnesses cannot be beneficiaries in the will. In some provinces, they also cannot be married to a beneficiary.

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2. Lack of Knowledge, Approval, and Understanding

If the testator did not have knowledge of the will’s contents or they did not understand the consequences of the wording, the will may be considered invalid. A court will determine whether a testator had knowledge and understanding of a will by considering different factors including:

  • Potential language barriers.
  • Difficulties with vision or hearing.
  • Whether the new will has significant changes from previous wills.
  • Whether beneficiaries were involved in the preparation of the will.

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3. No Provision for Spouse or Dependant

Spouses and children have the right to challenge a will if it fails to make adequate provisions for them. While there is no legal obligation to provide for adult children, courts have found that there is a moral obligation if there are sufficient assets to do so. On the other hand, there is a legal obligation to provide for a spouse, so the courts will be more likely to vary a will to ensure that they are being properly provided for.

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4. Undue Influence

If the testator was influenced by force, fear, or coercion, the will was likely created with undue influence. In this case, the court will consider the vulnerability of the testator, the degree of pressure, and whether the new will is drastically different from previous wills before determining if it should be varied.

To learn more about challenging wills or other areas of wills, estates, and trust law, get in touch with the team at Linley Welwood. We can be reached through our online contact form and will be happy to answer any questions you may have regarding your case.

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