Bildfell Law
Contested will reading

Contested Wills

A Will is a written declaration as to how property will be dealt with upon a person’s death. A valid Will must be signed by the testator (i.e., the person making the will) and witnessed by two independent individuals, who are not beneficiaries to the Will. The language used in the Will must clearly indicate the testator’s intention to dispose of his or her property in a particular manner.

Grounds for Challenging the Validity of a Will
Even where a Will appears on its face to be valid, there are several reasons why an interested person may challenge its validity:
  • Undue Influence - Where the testator was coerced or manipulated to draft the will in a way that violates his or her true wishes, the Will may be declared invalid.
  • Improper Execution - As above, the valid execution of a Will is subject to strict requirements. Where a Will has not been properly witnessed or signed, this may be a ground for challenging its validity.
  • Lack of Capacity - It may be argued that a testator did not have capacity to make the Will at the time he or she signed it, because of mental illness or other reason. It must be shown by the party making the claim that the testator did not know or understand the binding nature of the Will or did not appreciate the effects of his or her actions.
  • Inadequate Provisions for Spouse/Dependents - The validity of a Will may be challenged where it does not provide adequate support for the testator’s spouse or dependents, such as pursuant to the Succession Law Reform Act and Family Law Act.
  • Will Does Not Account for Debts Owed - The validity of a Will is sometimes challenged by a person who is a creditor of the testator, where the Will does not first account for repaying debts owed.

Process for Challenging the Validity of a Will
The first step in challenging the validity of a Will depends on whether the court has issued a Certificate of Appointment of Estate Trustee With a Will (a.k.a. Letters Probate). This certificate confirms the named executor (a.k.a. estate trustee) as the person in charge of the estate’s assets.

If probate has not yet been granted, a Notice of Objection should be filed with the court. This prevents the court from issuing a Certificate of Appointment in relation to the Will. An estates lawyer at Bildfell Law can file this notice for you to prevent probate from being granted.

If the Will has already been granted probate, a motion for the return of the Certificate of Appointment may be filed. A lawyer can assist in determining whether an order should also be sought to freeze assets until there is a resolution with respect to the validity of the Will. If probate was already granted, there may be a risk that the executor disposes the assets before the court has an opportunity to make an order with respect to the validity of the Will.

An estates lawyer in Petrolia or Sarnia at Bildfell Law can assist you in many ways. In addition to handling the above initial steps, the lawyer can also draft and file a Notice of Application for Directions with respect to the Will, file the appropriate related evidence and the legal argument, and speak to the matter before a judge.