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Wills are the best way to ensure that your estate is divided in a way that you wish, and allows you to give to some people in your family, and if desired, leave out others who might otherwise have been beneficiaries if you were to die without a will.  And while a will can go a long way to help avoid litigation, nothing in life is guaranteed, and sometimes a disgruntled family member might try to win themselves a piece of the estate. One way they can do this is by claiming that a will is invalid. The way that courts approach such claims was recently demonstrated in a decision from the Alberta Court of Queen’s Bench.

Wills leave out two grandchildren

The deceased was 96-years old when she died in 2016. She made a number of wills over the years, including in 2010, 2014, and 2016.

The deceased had five children, including “BB” who is the mother of “JB” and “PK.” BB died in 2011, five years before the deceased.

The deceased’s 2010 will stated that if any of her children pre-decease her, then any surviving children of that child would take the child’s portion of the estate equally. This would have meant that with BB dead, JB and PK would have received her portion of the estate.

However, the wills drafted in 2011 and 2016 contained an important change. These wills stated that the estate would be divided equally among her surviving children. She named the surviving children, obviously excluding BB, but maintained that if one of them should pre-decease her, then their children would still enjoy that portion of the estate. This clause was also included in the 2016 will.

Challenges to the validity of the will

JB brought the matter to court, claiming there were “suspicious” circumstances surrounding the preparation of the 2014 and 2016 wills. She said one of the deceased’s children (JB’s aunt) manipulated the deceased into changing her will due to a personal vendetta between JB and her aunt that arose when BB died.

JB stated that the deceased was blind by 2014 and relied on the aunt for all emotional and physical needs. She said the aunt told the deceased to cut her and her sister out of the will.

The aunt agreed that JB and the deceased had a falling out following the death of BB, but said she did not know the exact cause of the falling out. Other family members testified that the deceased stated that she wanted her will changed to reflect her desire to divide her estate among her surviving children. The estate planner, who helped with these wills, said he had no concerns about her capacity or ability to understand what she was doing at the time. He also said that the deceased approved of the will after he read through it and explained all of the clauses it contained, including the clause that cut out JB and her sister.

How to approach a challenge about the validity of a will

The court stated that a 1995 Supreme Court of Canada decision provides that an analysis of a will should begin with a presumption of substantive validity. The decision said that if a testator who knows and approves of the contents of a will should be presumed to have the necessary testamentary capacity.

In this case, while JB did bring concerns that call into question the free will or capacity of her grandmother, there is a problem in that she is the only source of evidence for this, and that there is nothing to corroborate her position. As a result of this, the court found there were no issues with the will.

If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estates Law

Contact Derfel Estates Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.

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