Challenging a Will

A Last Will and Testament is a legal document that sets out your wishes when you die. There are certain conditions attached and procedures that must be followed to make it valid.

In Alberta, there are limited ways in which a Will can be challenged. Claiming a testator, the person who made the Will, did not have the mental capacity when it was drafted is just one. A Will can also be challenged if there are technical flaws that invalidate it or if undue influence was applied to the testator. If the testator did not know and approve of the contents, the validity of Will can be challenged. The same applies if the Will is forged or fraudulent or if dependents are not adequately supported.

Challenging a Will is a complex matter and it makes sense to seek legal advice to determine if a claim can proceed and the steps involved.

Who Can Challenge a Will?

Typically, the people who can contest a Will are:

a surviving spouse;
a surviving adult interdependent (common law) partner who was in a relationship of interdependence with the deceased a minimum of three years before the deceased's passing;
dependant adult children;
minor children;
attorneys, under an enduring Power of Attorney, on behalf of an incapacitated donor;
trustees for represented adults;
a person who may have been a beneficiary under a prior Will;
a personal representative named under a prior Will; and
beneficiaries on an intestacy if a Will is determined to be invalid.

Any challenge to a Will action must be brought within six months from the date of the grant of probate.

How Do I Know If the Will is Valid?

In Canada a Will must be in writing. For it to be valid, the testator must have the mental capacity to understand what they are doing. Holographic Wills, those prepared solely by the testator, are legal in Alberta. These Wills must be in the testator’s own writing and signed by them. It does not have to be witnessed. A formal Will must be signed by the testator in the presence of two witnesses who must be at least 18.

If the Will is not properly executed there are grounds for a challenge. For example, witnesses must sign in the presence of each other and the testator. Also witnesses cannot be beneficiaries.

A Will can also be invalidated if the deceased failed to make provisions for a dependent spouse or child.

What Are Insufficient Grounds to Challenge a Will?

A Will cannot be invalidated just because you failed to get something you thought you were promised. Verbal promises hold no weight in court when there is a valid Will.

Unless you are a dependent spouse or child, the fact that you received no inheritance is not an automatic cause for challenge. A testator essentially has the right to leave the proceeds of their estate to whomever they choose.

There are no legal requirements to treat beneficiaries equally. This means if your sibling received 70 per cent of the estate and you got only 30 per cent, that is not, on its own, a reason to challenge the Will.

What Happens if a Will is Invalidated?

If you are successful in a court challenge and the Will is invalidated, the previous Will, if one exists, will be used to administer the estate. If you are challenging a Will, you should determine if there was an earlier version and what it entails. If there is no previous Will, the deceased will be considered to have died intestate. When someone dies without a Will, distribution of the estate will be governed by Part 3 of Alberta’s Wills and Succession Act (WSA).

We Have Experience in Challenging Wills

Kantor LLP has extensive experience successfully challenging Wills on behalf of our clients. If you are considering such a challenge, please contact our office and one of our experienced lawyers will assess your situation and provide further information on your legal options.

Initial consultations are free of charge.