There are four main ways in which the validity of a Will can be challenged. If any of them succeed, the Will is deemed to be invalid and cannot be probated. These challenges are:
Lack of compliance with the legal formalities of Will-making;
Lack of the Will-maker’s mental capacity when he/she signed the Will;
Lack of the Will-maker’s knowledge and approval; and
Legal Formalities of a Will
In order for a Will to be valid, the Will-maker (called the “testator”) must be at least 16 years of age. In addition, the Wills, Estates and Succession Act sets out the following requirements:
It must be in writing;
It must be signed by the Will-maker in the presence of at least two witnesses; and
It must be signed by at least two witnesses in the presence of the Will-maker
The Will-maker must be considered to have had the requisite mental capacity to understand the nature of his/her estate and the ability to articulate his/her intentions with respect to how it will be distributed amongst the various beneficiaries.
If the Will complies with all of the legal formalities (ie. is in writing, signed by the Will-maker, and properly witnessed and the Will-maker either reviewed the Will or had it read to him/her), then it is generally presumed that he/she had the mental capacity to understand and approve of its contents. This presumption (of having mental capacity) is removed, however, if “suspicious circumstances” can be shown to have existed at the time that the Will was signed. If that is the case, the onus is reversed and the person defending the Will (executor or beneficiary) must prove that the deceased had the requisite mental capacity and that the terms of the Will reflect his/her true intentions.
If “suspicious circumstances” are deemed to have existed, the onus is on the person defending the Will to prove that the terms of the Will accurately reflect the Will-maker’s intentions. The amount of proof required to satisfy this onus will fluctuate depending on the circumstances, and must be “proportionate to the gravity of the suspicion”. The Court will be particularly suspicious if a primary beneficiary prepared the Will, or if the primary beneficiary was intimately involved in its preparation.
If you are the executor or beneficiary who seeks to defend the validity of a Will, the experienced Wills & Estates lawyers at Bronson Jones & Company LLP can help. We can also assist if you seek to challenge the validity of a Will if you were disinherited, or if you have concerns that the Will does not make adequate provision for you.
There may be evidence that the terms of a person’s Will were the result of coercion or the overbearing nature of another person, and that they do not accurately reflect the wishes of the deceased. If this is the case, a Will’s validity may be challenged on the grounds of undue influence.
It used to be very difficult for a person to successfully challenge the validity of a Will on the grounds of undue influence since undue influence is not easy to prove. This is because undue influence is typically exerted in privacy and away from the family members, friends, and other loved ones who may have been the deceased’s intended beneficiaries. Section 52 of the Wills, Estates and Succession Act now makes it easier for an “undue influence” challenge to succeed. Section 52 creates a presumption of undue influence when the Will-maker is in a position of dependence to the beneficiary (i.e. a caregiver). The amount of proof required to satisfy this onus will fluctuate depending on the circumstances, and must be “proportionate to the gravity of the suspicion”.
Once the relationship of dependence is established, the person who wishes to defend the validity of the Will is tasked with the onus to prove that he or she did not exercise undue influence over the deceased when the Will was created.
The experienced estate litigation lawyers at Bronson Jones & Company LLP can help to protect the validity of a Will in the face of a challenge of undue influence. They can also help to advance a claim of undue influence if you feel that the terms of a Will were the result of someone’s undue influence, rather than being an accurate reflection of your loved one’s true wishes. Call us (toll-free: 1-855-852-5100) to see how we can help.
Knowledge and Approval
The Will-maker must have knowledge of the Will’s terms (i.e. what assets are being gifted, and to whom) and must approve of these terms.
If the Will-maker is deemed to have exhibited sufficient mental capacity at the time that the Will was created, and if there was no undue influence, then it is generally accepted that he/she also understood and approved of the Will’s contents. Accordingly, this challenge to the validity of a Will (lack of knowledge or approval) is rarely utilized.