Why would you want to contest a will?

Disputes related to contesting a will are increasing in number. Some people profit off of the weaknesses of those close to dying, in the worst cases influencing a vulnerable person to change their will. Consequently, such a will no longer respects the real last wishes of the dying person.

• Would you like to contest a will?
• What are the grounds for contesting a will?
• Can you challenge your father’s / mother’s will?
• Can you challenge a will if you are a beneciary?
• You think you should be in the will and you are not?
• What is the process to challenge a will?
• What are the chances of successfully contesting a will?
• When can a will be challenged?
• What is the time frame to contest a will?
• Can you contest a will after probate?
• Did the deceased make a will when he (she) was not capable to do so? Can I overturn a will due to dementia?
• What is undue inuence?
• Was there undue inuence when the will was signed?
• What is captation?
• Do you think that the heir is be declared unworthy?
• Can you overturn a notarized Will made right before death?
• Can a will be contested after probate has been granted?
• What is the cost for contesting a will?
• Do you believe that the formal requirements are not met?

Did you know that there are many reasons to contest a will?

If you think you should have been named in the will of a friend or family member but have not been, or if you wish to otherwise contest the contents of a will, you should first consult with one of our estate lawyers.

There are generally three ways to challenge a will:

• Lack of mental capacity (incapacity)
• Undue Inuence (captation)
• Formal requirements are not met

An individual opposing or challenging a will has the legal burden of proving one or more of these factors and must provide sufcient evidence to do so.

Lack of Mental Capacity

A will can be challenged on the basis that the deceased lacked sufficient mental capacity at the time of its signing, and did not know what they were doing when the will was signed. Mental capacity of the testator is one of a critical elements of a valid will. The testator must understand the content of the will, their assets, the consequences of making a will, and to whom they are bequeathing their assets. They must also understand that anyone who is excluded from the will may have grounds to make a claim.

Dementia can certainly affect the testator’s capacity. A person suffering from dementia often suffers from fluctuating capacity and can have “good days” and “bad days”. It is not unusual for a sufferer to be better in the morning than in the afternoon, or for their capacity to be affected by things such as medications. Furthermore, sufferers can sometimes have a “perfect” memory when discussing historical events but may be unaware of daily events. In such cases, obtaining the deceased’s medical files is essential. This is to prove that the deceased was not able to truly verify the accuracy of the will.

Undue Influence (Captation)

The will can also be disputed because of undue influence (captation). This means that the deceased was under the influence of a person who then became an heir in the will. This person could have used various methods to make the deceased vulnerable; proving undue influence can be difficult to accomplish, though not impossible.

A review of case law makes clear the majority of allegations of undue influence are dismissed at trial due to insufficient proof. Such influence is most often exerted in private, away from other friends, family members or potential beneficiaries. There are rarely eyewitnesses who observe undue influence being exerted.

To annul a will for undue influence is hard to prove directly; yet some indications can help in Court: the new heir was actively participating in drafting the new will, even giving his recommendations directly, the new heir isolated the testator and pretended to be the only taking care of him (her) out of pure altruism.

Formal Requirements Are Not Met

Contesting a will on the basis of formality involves establishing the existence of problems with the document itself – this can include improper witnessing or lack of a witness, the lack of a signature, the absence of an original copy of the will, or other similar issues.

Quebec Laws imposes specific formal requirements for a will to be enforceable. When these requirements are not met, this may constitute a basis for challenging the will.

For instance, a holographic will is required to be written entirely by the testator and signed without the use of any mechanical process.

A will executed before two witnesses is written by the testator or by a third person. The testator then declares in the presence of two witnesses of full age that the document he is presenting is his will. The testator must sign the will in the presence of two formal witnesses who are present at the time of signing. Each witness must then also give a signed receipt that they have witnessed the signing of the will by the testator. If there is any evidence to suggest otherwise, then a claim of lack of due execution may be raised.

Unworthy to Inherit

Quebec Law provides for certain cases where a person, may be declared unworthy to succeed. A person “may be declared unworthy of inheriting where a person is guilty of cruelty towards the deceased, and where the person has concealed, altered or destroyed in bad faith the Will of the deceased, or a person who has hindered the testator in the writing, amending or revoking of their Will.”

However, these are extreme and exceptional cases. In addition to the cases specifically designated by the legislator (such as an attempt on the life, abuse, will manipulation), any behaviour that is “highly reprehensible” may get an heir to be deemed unworthy to succeed. The misconduct must generally be voluntary and intentional. For example, someone who has defrauded the deceased may be declared unworthy to succeed, while another who has been simply negligent in the administration of his property would not be.

Contesting a will is a complex procedure. The counsel of an estate lawyer is essential in order to effectively carry out such a process. We can explain to you the different steps necessary for annulling a will.