Quite often we hear about someone’s Will being challenged. The most common grounds being:
- proper execution;
- knowledge and approval of the contents of the Will;
- lack of testamentary capacity; and
- undue influence and suspicious circumstances.
A person who wishes to challenge a Will as being invalid must file a Notice of Objection with the court which sets out the reasons for why they believe the Will is not valid.
The party challenging the Will (the “Objector”) has the burden to show there are “suspicious circumstances” surrounding the execution of the Will. If those suspicious circumstances are proven then the onus of proof “shifts” to the estate trustee as the propounder of the Will to prove the Will “in solemn form” and would be required to prove it was properly executed, the testator had capacity, actually signed the document and was not unduly influenced in the making or signing of the Will. In Ontario, a properly executed Will requires that:
- The Will must be in writing;
- The Will must be signed at the end by the testator in front of two witnesses while all 3 people are in the room at the same time; and
- The witnesses subscribe the will in the presence of the testator.
If the Will is duly executed (meets the 3 criteria listed above), it will generally be presumed that
the testator knew and approved of the contents and had the necessary testamentary capacity.
If the Objector can show suspicious circumstances surrounding the instructions or execution of the Will, the presumption of testamentary capacity and knowledge and approval is rebutted. The onus to prove the testator knew of and approved the contents of the Will and had testamentary capacity then shifts to the propounder (usually the estate trustee).
A Will challenge on the basis of undue influence results in the onus remaining with the Objector to prove undue influence. This burden is not an easy one to prove especially if there are no issues of capacity.
Whether wanting to challenge a Will or defending a Will challenge, or wanting to have a Will drafted that should withstand a challenge, please contact us.