Challenging the Will

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Challenging the Will

As our population ages and passes away, concerns about the validity of Wills are becoming more frequent in Medicine Hat and surrounding areas. The financial costs involved to challenge a Will and for the estate to defend the Will, can be significant. There is a real risk the value of the estate will be reduced through the process. There are non-financial costs too, including the time involved, the anxiety about the allegations raised, and the impact on the relationships between family members. It is important to have a good understanding about the process before you decide to launch this type of challenge. It is equally important to understand why Wills are challenged to minimize the risk of your Will being challenged.

One of the main reasons a Will is challenged is based on suspicion. In the case of Vout v. Hay, the Supreme Court of Canada summarized the three common areas of suspicious circumstances: 1) circumstances surrounding the preparation of the Will; (2) circumstances tending to call into question the capacity of the person who signed the Will (commonly called the testator); or (3) circumstances tending to show the testator’s intention was overborne by acts of coercion or fraud.

My clients in Medicine Hat come to me seeking advice on concerns related to suspicious circumstances. The circumstances vary from case to case, but most times the suspicion is raised either because the Will is a significant departure from an earlier Will the testator made, or the Will gives preferential treatment of one child over the other children or gives gifts to friends over family.

The law in Canada starts with a presumption that a person who signs their Will is expected to have read it, understood its’ contents, and had the mental capacity necessary to approve it. Where the Will is prepared by and witnessed by a lawyer, the lawyer is assumed to take the steps to confirm the testator’s mental capacity at the time the client gave Will instructions and also when the Will is signed. The lawyer may prepare handwritten notes, typed memos or even video recording to document the circumstances surrounding the signing of the Will as there may be years between the time the testator signs their Will and the time suspicious circumstances are discovered.

The challenger of the Will has the responsibility to raise the suspicious circumstances to overcome the presumption. If the challenger provides sufficient evidence that raises the suspicion, the executor for the estate is then required to provide evidence to address the suspicion.

Both sides will present evidence to the Judge to support their version of the events. The Judge must then determine what has most likely occurred.

A challenger may also try to prove the testator was unduly influenced to make the gift provisions to certain beneficiaries in the Will. Because undue influence is a serious matter, simply alleging it is not enough. The Will challenger needs to provide the necessary evidence to demonstrate undue influence was present and exerted on the testator.

The amount of and strength of evidence necessary to persuade the court your version of the events is the correct version is hard to quantify. In many cases the judge will need to assess all the evidence at a hearing to make a determination on whether the challenge is successful. Normally a Will is valid or it is not; there is no in between ground. This all or nothing risk may in some cases aid the parties to try to find a resolution of a matter which may allow for some middle ground settlement options.

If you are the testator making a Will, you should take reasonable steps to minimize the risk of Will challenges. It is important to recognize situations which may appear to other family members as suspicious. A Will that is a significant departure from a previous Will or which treats your children differently needs additional planning and information in order to minimize challenges to it. Your lawyer can assist you to analyze and address this risk.

Les Scholly
Les Scholly helps you navigate the turning points of life. He is a partner with Pritchard & Co. Law Firm, LLP and member of the Society of Trust and Estate Practitioners (STEP). Contact Les at 403-527-4411 or at