Under the law, a person drawing up a will is free to make whatever will he or she wants to make. Even if the person allocating the property—the testator—is fickle or capricious, a will is a will and must be honoured, says the law.
But while a person drawing up the will has the right to draft one according to his or her wishes, family members who have been left nothing in a will or left less than they expected also have the right to challenge and contest it.
Courts have the ability to investigate these cases thoroughly. They are obliged to determine the terms of the last will or other testamentary documents, which together constitute the last will and are to be admitted to probate.
The four primary bases upon which a will can be challenged are:
- lack of testamentary capacity;
- undue influence;
- lack of knowledge and approval; and
- lack of due execution.
The concept of “suspicious circumstances” may also play a part in a challenge.
Test for capacity
The test for capacity means a person must be generally aware of the nature and extent of their assets, the persons who will benefit and the provisions being made. The testator must also appreciate those provisions in relation to each other and take an orderly approach. It’s up to the executors and/or those who obtain a benefit under the will to establish testamentary capacity.
However, capacity is presumed if there is no evidence to the contrary. This presumption may make it easier for a person to succeed regarding a particular issue. However, presumptions are refutable; they can be met or overcome by putting forward other evidence, which is then accepted by the court.
Undue influence is another name for coercion. There is a difference between persuasion or inducement, which may be legitimate, and coercion, where the person making the will is somehow made, required or forced to do—by way of a will—that which he or she would not otherwise do.
Coercion may take many different forms. It’s generally the responsibility of those who allege it to verify it occurred. A challenger is rarely able to prove using direct—as opposed to circumstantial—evidence. The reason being undue influence typically takes place in secret, with no one else present to observe it.
It can include:
- a beneficiary pressuring a person to transfer money to them while the testator was alive;
- the beneficiary being instrumental in obtaining a power of attorney over the testator;
- the use of that power of attorney to the benefit of the beneficiary or detriment of the testator;
- the beneficiary being involved in the making of the testator’s will;
- interfering with the testator obtaining medical care or treatment;
- concealing activities involving the testator’s assets from others; and/or
- restricting contact or access to the testator by others.
Lack of knowledge and approval
It’s up to those who want to prove the will to establish whether a testator knew and approved of a will. Proving this can be achieved by establishing that the will was read to the testator or otherwise brought to his attention. In that instance, there is some presumption of knowledge and approval.
Lack of due execution
As for due execution or the signing of the will, the onus is on those putting forward the will to prove their case. This is typically not difficult to do. It is presumed due execution took place if there is no evidence to the contrary. As for a formal will, under Ontario law, if it is signed by the testator in the presence of two witnesses, who then sign as witnesses, due execution has been achieved. The solicitor that drafted the will obtains an affidavit of execution from one or both of the witnesses, either when the will is signed or afterwards, and keeps it in his file. The affidavit is evidence of due execution.
It should be noted that in Ontario the making of holograph or informal wills is also allowed. A testator can make a valid will entirely in his or her own handwriting and sign it, without any formality and without a witness. While it would be difficult to allege lack of knowledge and approval with a holograph will made by the testator in his or her own hand, such a will may still be challenged on the basis of lack of testamentary capacity and/or undue influence.