Gold’s Legal Minute*
THE INS AND OUTS OF CONTESTING A WILL IN COURT
By Allan Gold, B.A., B.C.L.
“ACCORD FINALLY ACCEPTS HEIRESS DUKE’S LAST WILL”. This was the headline of a story carried in the Montreal Gazette of May 16th, 1996. The settlement involved a million dollar payment and ended a 30-month legal battle.
The story explained that Duke’s final will dated April 5,1993, “… had been challenged by one of Duke’s doctors, several former employees and others, and the contentious battle has brought forth charges and counter-charges, including an affidavit contending that Bernard Lafferty, her high-spending butler and a doctor hastened Duke’s death in October 1993 with a drug overdose.”
While you may dismiss this as indicative of an immense estate/succession, and not relevant to you, I respectfully submit that you are in error. Of course, where there is more money involved, there is a greater chance for a party to challenge (contest) the Will. However, even where the estate has an average value, there are circumstances, which increase the probability of a challenge/contestation to a Will.
An example of such circumstances is when a testator/testatrix excludes a close relative because of the bad feeling between them. A second instance is when there are uneven bequests/legacies amongst the children following a divorce and remarriage. As well, an heir may challenge/contest a Will when he/she will more greatly benefit from a distribution in the absence of a valid Will under an intestate succession. Fourth, a beneficiary/legatee may bring court proceedings where he/she has a particular interest in a specific asset such as a block of voting shares or real estate, etc.; and yes Virginia, it probably has happened that a party even mounted a challenge/ contestation with less than altruistic goals, but rather with the avowed purpose of simply extracting a very advantageous settlement.
WHAT ARE SOME GROUNDS OF CHALLENGE/CONTESTATION?
LACK OF TESTAMENTARY CAPACITY: The primary ground is when a person executed a Will while not of sound mind. This may have been a result of senility, mental illness, insane delusions, etc., which caused the testator/testatrix to make legacies that he/she would not normally have made.
NOT AS PER THE LAW: The second basis is that a Will was not properly made; for example, where the signing/witness formalities were not followed. It is noteworthy that in some places, a Will must conform to the law of one’s principal residence at the time of the making of the Will. There is also a rule that where there is real estate outside of a province, the Will must also conform to the laws of the province where such real estate is situated. In some instances, domicile at the time of death is paramount.
DURESS/UNDUE INFLUENCE: A third cause may be where the testator/testatrix was subject to duress, the same involving an over-powering pressure, compulsion and coercion, etc., any of which resulted in the testator/testatrix acting as per the demands of the person imposing the pressure. Here, the Will was not necessarily the expression or the true desires of the testator/testatrix.
SUBSTANTIAL ERROR: An additional reason for a challenge is when a Will was made by a testator/testatrix, and there is evidence of a clear error made and/or an essential fact unknown and/or a great misunderstanding over the effects of his/her decisions:
SUBSTANTIAL AMBIGUITY: Furthermore, a Will is vulnerable where there is ambiguity such that the reader is uncertain as to the desires of the testator/testatrix.
INVALID/IMPROPER BEQUESTS: As well, while there are limits to what one may do in a Will, bequests/legacies under a Will may be disallowed, when such bequests/legacies are humiliating and/or insulting, and/or if there are conditions that are unduly restrictive, repellent, contrary to ordinary human dignity, etc. For example, where there is a prohibition/restriction placed in the Will respecting remarriage and the religion of a future spouse.
FALSE AFFECTION: Another, but more difficult cause to prove, is that a Will was executed, this with resulting benefits, whilst the testator/testatrix was the object of enticement through untrue affection by the beneficiary/ legatee.
FRAUD: A Will made through fraud is also attackable.
At the outset, one should canvass the family circle in order to verify whether there are others sharing in your belief. In any event, you are going to need more than a consensus; rather, you will require hard evidence and professional opinions. If you have the proof, and while a legal action may be conceivable, and assuming that the litigation expense is not an issue, one should not ignore the gut-wrenching emotion and stress that certainly will be endured. One must ask oneself whether one has the perseverance to see the case to the end. One must further consider the intangible costs such as the family breach that may result. In short, think hard before starting. This is a substantial undertaking. A decision to litigate and commence an estate war should not be taken lightly. Indeed, the mounting of a Will challenge/contestation may come at too large a price!
CAUTION/DISCLAIMER: The foregoing article is only for informational purposes and is not meant as legal advice. You are strongly advised to seek out legal counsel for your particular needs.
© 2009 PRACTITIONERS’ PRESS INC. ALL RIGHTS RESERVED.