The Reasons For Deciding To Contest A Will
David A. Brooker, litigation lawyer with the Toronto firm of Steinberg, Morton, Hope & Israel LLP, describes some of the reasons for people deciding to contest a will.
People will want to contest wills for many reasons. Sometimes there is a belief that there is another later will in existence or that the will that is being put forward isn’t valid, for several reasons. Sometimes, too, the client may only have an issue with the person who has been appointed as the estate trustee, and believes that he or she won’t act in the best interests of the beneficiaries, or may be untrustworthy. Clients may also believe that the estate has been divided unfairly because the testator was unduly influenced by a beneficiary or that suspicious circumstances existed surrounding the preparation of a will. If there is some concern concerning the validity of a will at that point, I can file a document, known as a Notice of Objection, with the court even before the application for probate, so that when the application is filed, the court will reject it because the objection is on file. A large percentage of the time someone, who will be attempting to probate a will that may be invalid, often files the application for probate quickly after the death of the testator, probably hoping to catch others who may have an interest off guard; therefore, it is important that if someone does suspect foul play to see a lawyer as soon as possible to protect their interests.
Sometimes when people come in, they’re not even sure of all the details, but they are uncomfortable with the situation. They say, “You know ‘so and so’ spent a lot of time with my dad before he died, and I heard some rumours” or “My mom told me she was going to see a lawyer, but I don’t know if she ever did.” My job then becomes to gather as much information as possible to put my clients at ease or to discover that their concerns are based on fact. Sometimes my clients concerns are prompted by not being informed clearly and promptly by an executor about what is happening with an estate, and that makes them suspicious. The person who should be giving them the information isn’t, and they want to find out things before they can take a position. And sometimes it’s just that the person who should have given them the information is lazy, or didn’t realize they had to, or they were busy with something else.
Often people come in and think that, because there’s been some kind of uneven distribution under a will, such as one child inheriting more than another, then that automatically means that the will can be successfully challenged, even if they know that the will does reflect the testator’s wishes. If the will meets the technical test for validity (such as being properly witnessed) and if it does express what the deceased person really wanted to do, then it will be valid, even if it is unfair. There may be other legitimate reasons for a person to make a claim against an estate for more than was left for them in a will, even if the will itself is valid.
People need to know that they should see a lawyer, if they have any doubts or questions. The lawyer can make sure that their questions are answered, and the issue may be resolved very quickly. If people wait too long, they may not be able to get their concerns addressed. People know their own family, so they should trust their instincts and experience if they are uneasy.
If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.