When a family member passes away, the surviving spouse and/or children often contest the provisions of the Will. Disputing the contents of a Will can be a challenging task since the courts tend to respect and uphold the wishes of the Testator as expressed in the Will. Accordingly, if you want to successfully challenge a Will, it should be done on legitimate reasons as opposed to mere dissatisfaction with its contents. Here are some of the grounds in which a Will can be challenged:
- Undue influence: when the Testator is influenced by another party in the drafting of the Will, such that the final Will does not reflect the Testator’s actual wishes.
- Lack of capacity to make a Will: when the Testator lacks mental/cognitive ability to manage their own personal affairs. For example, dementia, Alzheimer’s, brain cancer.
- Testator’s intentions are unclear: Testator’s wishes conflict in the Will. For example, the Testator names the Wife as the sole beneficiary of the residue of the estate and attempts to grant the residue of the estate to the minor children simultaneously. Here, it is unclear who gets the residue of the estate and the Office of the Children’s Lawyer will have to get involved along with someone to defend the drafter of the Will.
- Mistakes or noncompliance with formal requirements: where the Will is unsigned, not properly witnessed, or the Testator’s and beneficiaries’ names are consistently misspelled.
- Fraud and Forgery: Fraud occurs when someone intentionally misrepresents important information. For example, forging signatures or destroying the last Will and Testament.
We understand that challenging a Will after a loved one has passed away can be frustrating, overwhelming and a lengthy process. However, estate litigation can be very complex and requires an experienced estate litigation lawyer. Our experienced Litigation team at Landy Marr Kats LLP can help and guidance you in challenging a Will. Call us for help at 416-221-9343