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While a will is designed to lay out how someone wants their property to be handled following their death, there are plenty of circumstances that lead people, beneficiaries or not, to challenge a will. However, wills can’t be challenged unless certain minimum requirements are met. A recent decision from the Ontario Superior Court of Justice looks at what requirements are needed to challenge a will.

The will

The deceased passed away on April 6, 2017. In his will he left essentially his entire estate to his daughter, leaving his two adult sons out of the picture. The court explained that the siblings had a history of relationship issues, writing,

“The affidavits and the examination transcripts of the parties demonstrate there is substantial disagreement, strained relationships and enmity between at least (the daughter) and (the sons) that involve past loans, loans for a vehicle purchase, addiction allegations, alcohol and marijuana use, misappropriation of funds, the reasons and circumstances for various moves by the parties to and from the (the family home), negative communication allegations by each other vis-à-vis the deceased, among other matters.”

Contesting the will

The sons contested the will, calling into question its validity on the following basis:

a. the Will was a product of undue influence by (the daughter),

b. (The deceased) lacked testamentary capacity; and/or

c. (The deceased) failed to know and appreciate the contents of the Will.

The daughter responded with a motion looking to set aside the sons’ application, stating it failed to meet the threshold of evidence required. The court’s analysis would consist of a review of each of the basis on which the will was contested, and whether the evidence provided by the sons calls into question the validity of the will.

Lack of testamentary capacity

The first ground the court reviewed was whether the deceased lacked testamentary capacity. In order to complete this analysis, the court reviewed the deceased’s interactions with his lawyer in his final years. The sons provided little evidence to support this claim. The court accepted evidence that found the deceased “displayed no signs of confusion or memory loss. There were no behaviours that called into question (the deceased’s) mental capacity or would have prompted him to take regarding testamentary capacity, undue influence or the possibility of fraud overcoming his free will.”

The will was a product of undue influence

The sons argued the daughter exercised undue influence upon their father and provided some evidence to support the claim. First, the daughter had knowledge of a previous will, while the sons did not. She had suggested that he create a new will, and took the deceased to meetings where it was drafted. The daughter denied trying to exercise any influence over the deceased, but the court found that the opportunity to do so existed during the time she spent with her father. It left the court unable to determine if undue influence was applied.

As a result of this, the court determined the will challenge could go ahead. 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 Estate Law

Contact Derfel Estate 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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