Things don't always go according to plan. Maybe you got left out of a will or you think the division between the children mentioned in the will is unequal. You may not like the contents of a will or you think someone shouldn't get a gift but there is something you can do about it. Use these tips to contest a will in Canada.
Things You'll Need
Know who or what you are challenging. Be clear about what you don't like about the will. You may be challenging the contents of the will or the estate trustee who is in charge of distributing the contents of the will.
Follow the procedure for removing the estate trustee or challenging the will. You can challenge the proper execution of the will, the testamentary capacity of the person writing the will or claim any suspicious circumstances or fraud with regards to the writing of the will. Follow the specific procedure for each challenge.
Look at your rights under the Family Law Act and The Succession Law Reform Act. Make sure you look at up-to-date laws because laws change.
Read the Family Law Act if you are a spouse who has not been treated fairly in a will. You may be able to have your portion of the will set aside and take what you would be entitled to under the Family Law Act. There is a formula used to determine this amount; it's not 50/50. Your property before your marriage is calculated and so is any inheritance. Also, spouses cannot be disinherited.
Review the Succession Law Reform Act if you are a dependent person. Certain persons can make a claim for dependent relief if they are dependent on someone for certain types of support. Dependents can't be cut out of a will. They can apply to the court for support but it must be done in a certain time frame.
See a lawyer or paralegal who specializes in wills and estates. Each person with a concern should retain independent legal council. You should not be advised by the executor or testator's lawyers.
Ask for the estate trustee to be removed by applying for an order to revoke the Certificate of Appointment of Estate Trustee. You will also need a Certificate of Application of Estate Trustee During Litigation. Get a lawyer to help you follow the necessary procedure and to get you all the papers that you need.
Challenge a will on the basis of Testamentary Capacity if you feel the writer of the will is of unsound mind. It is your job to prove unsound mind, not theirs. You may need to go to trial to prove this and it is difficult. The court looks at whether testators understood the will they wrote, what they were doing, what assets are included, who they are obligated to support and how the estate will be distributed. You could try to prove that the testator of the will did not understand what he or she signed.
Consult a lawyer if you think someone was coerced into writing a will a certain way. You can claim undue influence or duress in this case. This may also be your claim if the person who wrote the will took a friend with them.
Tips & Warnings
- Be very clear about what you are contesting and follow the specific procedure for what you are contesting.
- You can't disinherit certain family members like spouses or some dependents.
- There are time limits to contesting wills and electing to receive their share in lieu of the will.
- A successfully contested will might not be thrown out. A portion of the will may be kept.