How to Challenge a Will
Disclaimer: This blog is only intended for educational purposes and shouldn’t be used as a substitute for legal advice
When someone dies, their estate and properties are inherited by their legal heirs through a legal process known as “probate.” During this process, the court determines the rightful heirs of the deceased’s assets based on their testament and last will.
However, there might be times when a will can be challenged. This means that the validity of terms present in the will can be legally challenged. Contesting a will is not very common, but it’s legally allowed and may occur given certain grounds.
What are the grounds for challenging a will?
Contesting a will may sound like overdramatic family feuds and legal battles, but that’s not always the case. Let’s look at some of the common reasons for contesting the will of a loved one:
If the writer of the will didn’t have a sound mind
If the person who drafted the will did not possess the mental capacity to comprehend the situation and couldn’t understand the circumstances, this may provide enough grounds to challenge the will.
A valid will entails that the writer of the will is able to make crucial decisions and understand the nature of their impacts.
It’s not clear if the document was made with the intention of writing a will
Generally, a will contains an express written statement by the will-maker asserting that it is their testament and last will. This may sound obvious, but if any doubt arises after their death about the nature of the written document, it can be legally contested, and the terms of ‘will’ can be dismissed altogether.
For instance, some of the heirs might argue that their parent’s will was only written in an old diary which was not intended to be their last will in the first place.
If the will is not complete or missing will-maker’s or witnesses’ signatures
For the will to be legally valid, it must be signed by the person writing the will. It must also be signed by at least two witnesses who are not part of the will in most cases.
This is to ensure that these witnesses have no personal interest in the will can verify in the court that the will is legit if required. A will without any signatures or witnesses can lead to doubt and provides sufficient grounds for contesting it.
If one of the heirs disagrees with the distribution of estates and assets in the will
Sometimes a dissatisfied heir can challenge a will if they’re not happy about the unequal distribution of assets.
For instance, if a child was written out of their parent’s will and they think this was not intended, they can argue they should have a legal share in the will. If such is the case, they can challenge the will in court and appeal for a just distribution of assets.
Who can challenge a will?
Not everyone can challenge a will. The person who challenges must be one of the interested parties. “Interested party” means that they have some stake in the assets and the terms of the will. Interested parties may include the following:
- Beneficiaries named in a will
- All the beneficiaries named in any previous versions of the will but later written out of it
- Any potential heirs – this includes people who can legally inherit assets under the law, for example, children, spouse, siblings, grandchildren, parents, or other family members.
How can one challenge the will?
As the probate process starts and the will is filed in the court, it can be contested by the interested parties. The process of contesting the will look like the following:
- Consulting a will and estate lawyer: Although this step isn’t necessary, due to the legal complexities involved in contesting a will, most people seek legal counsel and hire will and estate lawyers to increase their chances of winning the claims.
- Filing a claim in the court: Once they’ve hired a lawyer, the next step is to file the claim in the probate court. The claim is filed in the province or territory where the will-maker died. The court will often provide you with legal forms you’ll need to file the claim.
- Presenting the case in court: Once the person has filed the claims, they need enough evidence to support it. They’ll need to present this evidence in court and go through the complete legal process just like any other legal matter.
- Wait for the court’s decision: If the person wins their challenge, they’ll receive the assets claimed in the contest.
No-Contest Clause
This is a condition that a will-maker may add to their will. As the name suggests, a no-contest clause means if the claimant’s challenge fails, they’ll be completely disinherited from their will.
This clause is added to discourage heirs from challenging the will if they’re not happy about the current distribution of the estate and other assets.
If you’re looking for legal counsel on the matters of will and family laws, Nanda & Associate Lawyers can help you. They have will and family lawyers in Toronto who will assist you in all the related legal matters.
The firm also has experienced civil litigations lawyers, personal injury lawyers, and estate lawyers to assist you. Contact them today to schedule your appointment.
About the Author: Peter R. is a permanent member of a renowned law firm in Toronto. He is a family lawyer with over 15 years of experience. His practice also focuses on estate planning and administration, which involves the preparation of wills, trusts, and other legal documents that are useful in the distribution of assets.