They say you can't pick your family, and nowhere is this more evident than in the field of estate law. Unfortunately, we all have at least one relative with whom we're not on great terms When there's a death in the family, those simmering conflicts tend to boil to the surface.
Someone might get left out of a will and set out to challenge the estate distribution. There may be valid reasons to contest a will.
However, to successfully contest a will you'll need to know the grounds for doing so. We'll discuss those in this article.
WHO CAN CONTEST A WILL?
Before we discuss how to contest a will, it's important to note that not everyone can. The first rule is that you must be an adult. However, people can contest a will on a child's behalf or on a Dependent Adult’s behalf.
Lack of Mental Capacity One of the grounds to dispute a will and estate distribution is the lack of mental capacity of the testator-the person preparing and signing the will. This means that the deceased testator couldn't fully understand the circumstances of their will and estate distributions due to mental incapacity. We’re all aging and potentially subject to age related mental incapacity. This is why it's important to address the issue of wills and estate planning?! sooner rather than later.
Technical Requirements for Wills There are several pieces of legislation as well as common law rules which govern the validity of wills, including the Wills and Succession Act, the Estate Administration Act, and the Surrogate Rules among others. It pays to have guidance from the highly experienced wills and estate lawyers at First West Law LLP to ensure that your will meets all the technical requirements.
Undue Influence As we age, we tend to rely on our family members or friends to assist with tasks that we would have easily and happily attended to on our own. This includes preparing and signing a will. In most cases this works well, but on occasion, those family members or friends will exert undue influence on an elderly or infirm testator and potentially cause the will to be drafted in a manner which was not the testator’s true intention. If there is a suspicion that those circumstances apply, the estate litigators at First West Law LLP can assess the situation and give you well considered, experienced advice. If need be, we can advocate on your behalf in Court.
Inadequate Support The Wills and Succession Act requires that a testator makes adequate provisions for family members in their will. Order for maintenance and support of family member 88(1) If a person (a) dies testate without making adequate provision in the person’s will for the proper maintenance and support of a family member, or (b) dies either wholly or partly intestate and the share to which a family member is entitled under a will or Part 3 or both is inadequate for the proper maintenance and support of the family member, the Court may, on application, order that any provision the Court considers adequate be made out of the deceased’s estate for the proper maintenance and support of the family member.
SPEAK WITH AN ESTATE LAWYER
Speak with a wills and estate lawyer or an estate litigator in Calgary at First West Law LLP today to discuss your situation. We can help you determine whether you have grounds to contest a will, or assist you in protecting an estate.