How to Defend a Will
Disclaimer: This blog is only intended for educational purposes and shouldn’t be used as a substitute for legal advice
A will is a legal document that offers precise instructions on dividing the deceased’s property and estate. However, some legal situations may arise after the will-maker’s death that could lead to disputes over the terms of the will. In such scenarios, interested parties might question a will in the probate court.
After a will is contested, it needs to be defended by the executor. Let’s first look at who can challenge the will under what circumstance before we discuss how the executor defends a will.
Who can contest a will?
When a will is contested in a court, the procedure is known as “will contest“. A contested will is a legal action that challenges the will’s validity. The interested parties who can contest will include:
- All the beneficiaries mentioned in the will
- People who are not expressly mentioned in the will but under the succession laws they’re eligible for inheritance
Reasons for contesting the will
The interested parties – or the stakeholders in the will – can challenge it under two broad circumstances.
First, if the will doesn’t reflect whether the will-maker intended to draft a will or not. Secondly, if the will is legally invalid, it can be contested.
No matter on what grounds a will is contested, it’s not simple to win the claim since it requires lots of supporting evidence, and generally, courts aren’t inclined to interfere with the terms of the deceased’s will.
For this reason, if a person is not sure whether they should challenge a will or not, they must consult a lawyer to get further clarifications on their specific case.
Here are some of the most common reasons that may lead beneficiaries to challenge the will:
- If the will-maker wasn’t mentally stable when they drafted their will
- If one of the interested parties manipulated, coerced, or forced the testator to make the will in their favor
- If the testator never signed their will
- If the will is forged
- If there’s a newer version of will than the one presented in the probate court
Who should defend when a will is contested?
Typically, the person appointed for the execution of the will is responsible for carrying out the defense of a contested will. The executor is the individual who was appointed by the will-maker (called the testator) to look after all the matters related to their will once they’re deceased.
Executors of the will have certain duties to the testator’s assets and estate. Their duties include ensuring that the deceased’s debts are paid off, and the remaining properties and assets are justly distributed among the interested parties as specified in the will.
Another crucial duty an executor has to take care of is when the will is contested in the probate court. In this case, the executor is responsible for defending the claims against the will and handling all the legal matters required to defend the deceased’s will. These duties will often include going to the probate court, retaining counsel, fetching witnesses of the will, and maintaining legal records of the court submissions.
Does contesting the will mean removing the executor?
Technically, challenging a will is not the same as taking legal action to remove the executor of the will. If a beneficiary wants to replace or remove the executor of the will, they can file a petition in the probate court for a replacement.
Here are some of the common reasons that may provide ground for removing the executor:
- If they’re deceased or incapacitated
- They lack mental competency
- Commission of felonies
- They neglect fiduciary duties
- They stole or wasted any estate assets
- They refuse to obey the orders given by the court
It must be noted that courts are generally not in favor of removing the executor unless there’s a strong legal reason. The person trying to get the executor removed must present sufficient evidence if they want to replace or remove the executor.
Common Ways to Defend a Challenged Will
The specific method that an executor chooses to defend the contested depends on the nature of the claims made against the validity of the will. However, here are some of the common ways to defend the challenged will:
- By submitting handwritten notes, letters, or electronic documents to prove the deceased’s wishes
- Presenting the two witnesses of the will in the probate court
- Hiring a witness, like a doctor, who can prove the mental competency of the testator at the time of drafting the will
The methods to defend the will include anything that helps establish the fact that the will was valid in the first place and reflects the deceased’s true intentions.
If you’re looking for legal assistance in defending a contested will, Nanda & Associate Lawyers can help you. They have highly experienced will and family lawyers in Toronto who will assist you in all the related legal matters. The firm has a combined 150+ experience in helping a wide range of clients in 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: Anna R. is a family lawyer in Toronto. She has been assisting clients on matters of will, divorce, custody, and related legal matters over the past 12 years. She regularly writes for various social media sites regarding common legal issues.
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