People who take the time for comprehensive estate planning try not to make errors. Unfortunately, some family members who feel slighted by a will during the estate administration process might choose to challenge the will. Doing so can be costly, time-consuming (it can drag on for years) and emotionally draining.
For people who were left out of a will thinking they shouldn’t have been, they may believe the potential negatives will be worth it. But are they really?
Why contest a will?
More people are going to court over wills. That doesn’t mean they all win their cases. When wills are challenged in Ontario, the reasoning is usually due to allegations of undue influence or testamentary capacity. Another reason may be that the will was not executed correctly – for instance, it wasn’t signed or witnessed properly. This whole issue is a very emotional one and has much to do with hurt feelings.
What are the chances of winning?
Challenging a will is difficult. The onus is on the challenger to prove the will should be declared null and void. The testator is presumed to be mentally competent at the time the will was written, so it is up to the person contesting the will to prove otherwise – which is no easy feat. They must also prove the testator was under the undue influence of someone else if that is the reason the contester is citing. All this can be incredibly expensive.
Ontario residents who are adamant about fighting a will may be wise to speak with an estate planning lawyer about how the challenging process works. Knowing what’s involved may make the decision easier to make. In any case, getting an experienced lawyer to weigh in on the particulars is a smart move.