Please note this information is only a general overview to be considered, and is not legal advice.
Although wills may be contested, it's not as easy as it sounds. And it's not something anyone can do just because they think they were somehow short changed. For example:
- The testator (the person making the will) said you would be included in the will. Unfortunately, verbal promises don't count for much when it comes to wills. If it's not in the will, you may be unable to contest or challenge the will based on a verbal promise.
- The testator did not use a lawyer. Although obtaining the services of a lawyer is advisable, there is no legal requirement to do so. A person can write their own will using a software program or even write their will by hand (a holographic will). Usually, all that's required is that the testator wrote the will and signed it in front of two witnesses.
- You believe the will isn't fair. Perhaps the will provided a larger share to someone else and you feel you deserve more. There is no requirement that a will be fair. With a few exceptions, the testator is free to decide how the estate is distributed.
- You are an adult sibling who was left out of your mother's, father's, or parents' will. Adult children cannot contest the provisions in a will simply because they were excluded, unless they are unable to earn a livelihood by reason of mental or physical disabilities.
- You are a grandchild or other relative of the testator. You usually cannot contest a will solely on the basis of these relationships; however, you may be able to challenge the validity of the will (see below). If the will is proven invalid, it will be treated as though the testator died intestate (without a will) and that might, in certain circumstances, entitle you to part of the estate.
Who Can Contest a Will?
In general, the categories of people who have legal standing to contest a will are:
- A spouse or adult interdependent (common law) partner
- Adult children
- A person, such as a beneficiary, who has a financial interest in the estate and can demonstrate that financial interest was included in a previous will, or can otherwise be proven
- The Public Trustee
- Heirs on an intestacy
- Attorneys under an enduring power of attorney
- Trustees of represented adults
What Are the Grounds For Contesting a Will?
Typically, there are several major grounds, or reasons, for contesting will. A will can be challenged when there is:
Inadequate Dependent Support
The Alberta Estate Administration Act allows for dependent family members to receive adequate support from a deceased person's estate. If you are a spouse, adult interdependent (common law) partner, or dependent child of the deceased, you can contest the distribution in a will if you feel it didn't provide for adequate support.
A Lack of Mental (Legal, Testamentary) Capacity
Wills are commonly challenged on the grounds of the testator's mental capacity and may be invalidated if a lack of mental capacity is proven. Mental capacity is determined by the Court and, although it is highly influenced by medical evidence, that is not the sole consideration. In general, the Court will determine whether the testator:
- Was of sound mind, memory, and understanding.
- Understood the nature and effects of the acts in the will.
- Understood the extent of the property being disposed of.
- Remembered the persons the testator might benefit and their specific legacies.
- Understood the possible nature of claims against the estate by those being excluded.
- Was free of certain mental disorders that could affect the testator's judgment.
Validity of the Will / Technical Flaws
Generally speaking, in order for a will to be valid:
- It must be in writing and, with certain exceptions, have been made by a person over 18 years of age.
- It must have been signed by the testator, or another person under the testator's direction.
- It must have been witnessed by at least two other people in the presence of the testator, unless the will was personally handwritten (holographic will).
- Any alterations after writing the will must be properly signed and witnessed.
Additionally, the will may cease to be in force in certain circumstances:
- Another will or codicil was executed at a later date.
- The deceased, prior to death, intended to revoke the will by destroying it or directing someone else, in their presence, to destroy it.
However, it is possible that even with non-compliance of the above factors, the will may still be validated by the court.
Undue influence, or duress, occurs when the testator is coerced by another person into making changes to the will, resulting in a will that doesn't accurately reflect the testator's wishes. This can often be very difficult to prove to the court by the person challenging the will. It is not sufficient to simply demonstrate influence; there had to be enough influence to persuade the testator into making changes. Another factor the court will consider is the nature and extent of changes to a previous will.
Forged Wills and Fraudulent Wills
Since hiring a lawyer to prepare a will is not a legal requirement, it is relatively simple for a will to be forged. A person may forge a handwritten will, or simply forge a signature on a will prepared with a will kit. Forgery can, in some cases, be proven by a handwriting expert.
Fraudulent wills are more difficult to prove. The will may have been written based upon lies made by someone with influence over the testator. For example, one beneficiary may falsely claim that another beneficiary committed an act, like stealing money, that the testator finds objectionable.
Can You Challenge a Will After Probate?
A will can be contested after a grant of probate is issued, but it may be more challenging than contesting a will before the grant is issued. The reason is that Probate is a court process to determine the validity of a will. Once the validity of the will has been ‘proven', there must be strong new evidence that wasn't previously known to the court, such as the existence of another will.
Wherever possible, you should try to challenge a will before the grant of probate is issued and a personal representative appointed to administer the estate.
How Long Do You Have to Contest a Will?
Where there is a dispute or the potential for a dispute as to the validity of a will, it should be proven formally. An application for formal proof of a will may be made at any time whether or not a grant of probate has been issued.
How to Contest a Will in Alberta?
Before beginning the process of challenging a will, you must ensure:
- You have legal standing (see above).
- You have sufficient grounds.
If you meet all these conditions, you may apply to the court to have the will deemed invalid. We suggest you first get legal advice before deciding whether or not to proceed.
How Much Does It Cost to Contest a Will?
The legal costs for contesting a will can vary a great deal depending on the complexity of the case, the strength of your evidence, and the amount of expected resistance by other parties.
Once all of the facts are known, our law firm should be able to give you an estimate of the costs involved for each phase of the litigation process.
Your Friendly Will Disputes Lawyer
We can advise you on all of the above issues as they pertain to your specific case, and provide our view on the challenges you may face if you decide to proceed. Contact us today to get started.