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Legal Grounds For Will Challenges

May 1st, 2013 by Justin Winch

The loss of a loved one can be a devastating experience. Unfortunately, some of those still grieving find another painful shock awaiting them when they learn they have been left out of the deceased’s will. These can be difficult times where informed legal advice regarding Legal Grounds for Will Challenges becomes a necessity.
There are a number of legal grounds in which to challenge the validity of a will. Below is a brief summation of the 3 most common types of will challenges.

  • The first ground for challenging the validity of a will would be its failure to comply with the rules set out by the Succession Law Reform Act. Ontario requires full compliance with the formalities of execution. While most wills prepared by legal professionals will comply with these rules many home made wills do not.
  • Another ground is whether the deceased had the capacity to make the will.
    Did the deceased know what property and assets they had and that the will would be disposing of these assets after their death? Did they understand and have a true understanding of any obligations they may have to spouses and children? A challenge on this ground would require hiring expert medical witnesses to review the deceased medical records and retroactively assess the deceased’s mental capacity at the time the will was made.
  • The third ground to be discussed is whether there were any suspicious circumstances surrounding the drafting of the will or whether the deceased was under any undue influence. A Will has to represent the true intentions of the deceased. Undue influence can occur when a person feels compelled to honor the wishes of someone making a direct or implied threat, or attempts to leverage an elderly persons weakened state to their advantage. This can often occur when a child convinces a parent to remove their sibling from the will. Similarly, a will signed on the deceased death bed leaving everything to a caregiver at the expense of family members may give rise to a challenge on the grounds of suspicious circumstances.

 

The law surrounding challenges to a will is complicated. Furthermore, no two cases are the same. This article provides a brief, general introduction to the topic. If you are in this situation it is important that you seek out qualified legal advice from an Estate Lawyer.

 

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