Frequently when people learn of the contents of a family member\u2019s Will they are upset and disagree with the intentions expressed in that Will.\u00a0 As a result, it is common for lawyers to be asked \u201cHow can I challenge or contest this Will?\u201d.<\/p>\n
There are two fundamental grounds for challenging or contesting a Will. One is that the maker of the Will lacked the capacity to make a Will \u2013 legally known as testamentary capacity.\u00a0 Testamentary capacity is defined as the requirement that the maker of a Will understand the nature and extent of his or her assets; and also understand his or her family members and family situation.\u00a0 The older cases referred to an understanding of the natural claimants on the Will maker\u2019s bounty.<\/p>\n
Testamentary capacity is not an especially high standard and a general understanding of the person\u2019s assets and family members is all that is required.\u00a0 In addition, the person must have general mental capacity in terms of an absence of delusions and a very basic level of common sense.\u00a0 It is permissible to be eccentric but not mentally ill.<\/p>\n
The other main ground for challenging a Will is undue influence.\u00a0 The Will maker must not have been coerced into drafting his or her Will.\u00a0 While the law will allow pestering or advancing claims by potential beneficiaries; the free will of the Will maker cannot be overcome by coercion as that constitutes undue influence.<\/p>\n
Assuming capacity and the absence of undue influence, in Ontario we generally have what is known as \u201ctestamentary freedom\u201d to dispose of our estates in any manner we see fit.\u00a0 The exceptions are the Will maker must provide certain minimum benefits to a legally married spouse under the provisions of our Family Law Act<\/em>.\u00a0 Generally speaking a spouse must be treated at least well on death as that spouse would have received on separation and divorce.<\/p>\n The next exception is the obligation of an individual to provide for his or her dependants in his or her Will.\u00a0 If the dependants are not adequately provided for, Part V of the Succession Law Reform Act<\/em> allows dependants to make claims against the estate to receive adequate support.\u00a0 Dependant is defined as immediate family members who the person in question was either providing support to or was under a legal obligation to provide support to before his or her death.<\/p>\n The final exception is that it is possible by way of contract or agreement to obligate one to make a Will a certain way or with certain provisions for the benefit of the other parties to the contract.<\/p>\n So taking into account those above exceptions, once a person\u2019s debts, funeral expenses and taxes have been paid, his or her estate can be distributed in accordance with that individual\u2019s Will in any manner her or she chooses.<\/p>\n
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