However, many people don’t realize that a will can be contested. Contesting a will is a legal process whereby someone (usually a family member) goes to court to claim that the will, or parts of it, are invalid or should be changed. Various people could contest a will, for a variety of reasons. Therefore, it’s important to make sure that your will is as bulletproof as possible when you write and update it.
In this article,* we’ll explain the circumstances in which contesting a will is possible, the types of people who can contest a will, and the steps you need to take to help prevent anyone from contesting your will.
How a will can be contested
The good news is that not just anyone can contest a will. Only certain people with an interest in your estate may contest your will. While this may vary depending on your province or territory, typically, the people who are considered to have an interest in your estate who can contest your will may include:
- your spouse, children or other close family members
- any beneficiary named in your will
- any creditors you have when you die
Additionally, someone can’t contest a will just because they are unhappy with your wishes. Instead, there are limited grounds for contesting a will, which include:
There are limited grounds for contesting a will, including:
- The will does not meet the legal requirements for a valid will under the province or territory’s rules for creating a valid will. (Note that, in some jurisdictions, a will that does not comply with the formal requirements can still be validated by the court under certain circumstances.)
- The person making the will lacked the mental capacity (known as “testamentary capacity”) to create a valid will.
- The will was made under undue influence, meaning that the person writing the will was coerced into creating it, typically by people who were looking to benefit from the will, such that the will does not represent the person’s true wishes.
- The will is fraudulent or was created by deceit or misrepresentation
Also, even if the will itself is valid, some family members can challenge the will or contest the distribution of your property if they’ve been left out or feel they didn’t receive a fair share of your estate. While generally there is no legal requirement to treat people fairly, in some cases, a will can be contested if a spouse or dependent child has not been provided for adequately. This often referred to a as a claim for dependant’s relief. In some jurisdictions, a financially independent adult child may also be able to contest a will on this basis.
Let’s look at the steps you can take to help ensure that there are no grounds to contest your will and that all your dying wishes are met.
Make your will legally watertight
Working with an estate lawyer when creating and revising your will can ensure that you abide by the legal requirements to avoid anyone contesting your will that apply in your province or territory. Signing your will in the presence of your lawyer and another independent witness, without and beneficiaries present, will help prevent the will from being contested for being fake or written with undue influence. To this end, witnesses should not be beneficiaries of the will, nor a spouse or common-law partner of a beneficiary of the will.
A lawyer can also help you to include a no-contest clause in your will. This clause can state that if a beneficiary contests the will and fails, they will forfeit their gift. While there is still a chance that this may not stop your will from being contested (and may not always be enforceable), it can still be a deterrent. A domestic contract (such as a pre-nuptial agreement, cohabitation agreement, marriage agreement, etc.) can also prevent a spouse from contesting a will. Updating your will at key moments can also prevent anyone from contesting it.
Confirm your mental capacity
If mental incapacity could be grounds for contesting your will, you could have your doctor examine you and you could have them write a letter confirming your mental capacity at the time when you created your will.
Your lawyer might also ask your doctor and other people with whom you have regular dealings (such as your friends, neighbours, service providers, etc.) to swear an affidavit as to their opinions of your capacity. This could provide a strong case if someone were to contest your will based on your mental incapacity.
Ensure that there’s no hint of undue influence
Signing your will in the presence of your lawyer and other neutral witnesses who are not beneficiaries of your estate can help prevent someone alleging that your will was produced by undue influence.
Similarly, when you give instructions for your will, it helps if you and the lawyer speak in private and without any beneficiaries present. If translation services are required, it helps if they’re provided by an independent translator, instead of a beneficiary of the will.
Be fair
If your will adequately provides for your dependent children and current spouse, there will be less chance of having your will contested. While in most provinces and territories, financially independent adult children do not have a legal right to be beneficiaries of a will, the court may decide that there is a moral obligation. Therefore, keeping things as fair as possible can help prevent anyone from contesting a will (and life insurance can also be a useful tool to facilitate this).
Tell your family about your plans
Being open about your intentions can go a long way to preventing any of your family members from contesting your will. If your spouse and children are aware of (and happy with) how much they’ll receive, there’s much less chance that they’ll contest the will.
If you are intentionally leaving a child out of your will, then it can help to name that person in your will and specify that you’re intentionally leaving them out (so that they can’t later argue that the lawyer “must have forgotten” them, or that the fact that you didn’t mention them was a sign that you forgot them due to lost capacity).
Generally, you should not explain your reasons for disinheriting them within the will, as a will is public document once it is submitted to the court for probate. Instead, you could write a letter that you keep with your will explaining the reasons behind your decisions, such as why you left someone out of your will or gave one child more than the others.
Consider a revocable living trust
Depending on your circumstances, you may choose to transfer your non-registered assets into a trust while you’re alive (typically referred to as an “alter ego trust”). You can still use and spend your assets, but the trust technically owns them.
When you die, assets are distributed to beneficiaries according to the trust’s terms. This way, the trust isn’t part of your estate, and contesting its terms is more difficult than contesting your will (although exceptions may apply). It is important to note that a trust is not always a suitable option for everyone. An estate lawyer can advise you on whether this is a good option in your jurisdiction and based on your circumstances.
Choose the right executor
Choosing an honest and trustworthy executor can go a long way in ensuring the smooth administration of your estate and preventing anyone from contesting a will.
Your choice of executor may not prevent a will challenge, but if your executor provides timely information to estate beneficiaries and works hard to perform their duties, this could at least prevent disputes over the estate administration as a whole. Find out more about how to choose an executor.
Ask your IG Advisor for advice
Your IG Advisor can help you develop a robust estate plan. While you should still use a skilled estate lawyer to help you draw up and sign your will, your IG Advisor can ensure that it fits into your overall financial plan.
They can also help by suggesting insurance policies that can prevent your beneficiaries from feeling the need to contest your will. If you don’t have an IG Advisor, you can find one here.
* This article applies to residents of Canada who are not residents of Quebec.
Written and published by IG Wealth Management as a general source of information only. Not intended as a solicitation to buy or sell specific investments, or to provide tax, legal or investment advice. Seek advice on your specific circumstances from an IG Advisor. Trademarks, including IG Wealth Management and IG Private Wealth Management, are owned by IGM Financial Inc. and licensed to subsidiary corporations.
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