Contesting a Will in Ontario with a Wills Lawyer – the Basics
Sep 26, 2023
A wills lawyer doesn’t only need to understand how to build a will and estate plan for their clients. They also need to build the will so that it is legally sound, and tough to contest.
When someone dies, family members have a lot of responsibilities. Organizing the funeral, notifying friends and family, writing an obituary, delivering a eulogy. It is a very emotional and stressful time for everyone. There is additional stress for the Executor of the deceased’s will. This person is responsible for making sure the provisions in the will are carried out. In some cases, a will may be contested which complicates the process.
Who Can Contest a Will…and Why are Wills Contested?
Anyone who stands to inherit property (including money or investments) can contest a will. This means close family members of the deceased, described as “dependents” in Ontario’s Succession Law Reform Act, including:
- spouse or common-law partner
- child or grandchild (adopted or biological)
- parent or grandparent
- brother or sister
- aunt or uncle
- niece or nephew
In addition, someone who was financially dependent on the deceased (for example an ex-spouse receiving support) may also be able to contest the will.
Reasons to contest a will vary, however, the courts will only accept certain grounds when examining the case. These include:
- lack of mental capacity – the person making the will did not have the mental capacity to understand their decisions.
- fraud or undue influence – the person making the will was subject to fraud, signed the will involuntarily, or was under coercion from a third party, meaning the contents of the document might not truly reflect their wishes.
- forgery – a will can be contested if a potential inheritor believes the document is a forgery, or was tampered with by a third party.
How Do You Contest a Will?
If you believe a loved one’s will was created fraudulently, or they were unable to properly understand the contents of the will, it is important to contact a qualified wills lawyer who understands the law and can help you build your case.
The first step in contesting a will is to file a “Notice of Objection” with the courts as quickly as possible. This is typically done soon after the death of the loved one, when inheritors are informed of the contents of the will. However, you have two years from the date you discover reasonable grounds to file your Notice.
Your Notice of Objection must clearly outline the grounds for contesting the will. If the grounds are not valid, or if the person filing the Notice is not a valid inheritor, the case will be thrown out of court.
The burden of proof in these cases is on the person contesting the will. That means if you file an objection to the will, you must be prepared to back up your claim.
You can rely on witnesses who were present when the will was signed and may believe that the will was altered or coerced. Doctors or other professionals who can provide evidence as to the decedent’s state of mind can also be called to testify.
Defending a Contested Will
In general, the Executor of the will needs to defend the contested will. If you are the Executor of the will being challenged, you may need to provide evidence to counter the claims of the person contesting the will.
The Executor is ultimately responsible for handling any legal tasks associated with defending a will. Due to the complexity of these cases, most Executors retain a wills lawyer to provide counsel, help prepare their defense, and maintain records of filings, negotiations, and court submissions.
While in the past many contested wills went through the court system (litigation), the legal system is increasingly turning to alternative dispute resolution methods like mediation, negotiation, or arbitration. Your wills lawyer can help prepare you for all avenues of dispute resolution.
Who Pays the Legal Fees?
It can be expensive and time-consuming to challenge a will. Generally, the loser in the estate dispute pays the legal costs. This can be included as a part of any negotiation or mediation. However, if the case enters the court system, the judge has the final say on any costs. It is rare that legal and administrative costs are fully recovered.
Creating a Will, Contesting a Will, Defending a Will – Contact a Wills Lawyer at the Kelly D. Jordan Family Law Firm
Contesting and defending a will can be challenging. The best approach is to rely on the experts who can help you build a solid estate plan that will help protect you and your estate against any claims. If you need advice, contact a wills lawyer at the Kelly D. Jordan Family Law Firm. We have the experience and creativity you need to make sure your wishes are protected. Contact us online or call our offices at 416-849-5501.
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