Reasons That Wills Can Be Challenged

Charles Ticker, founder of the Charles B. Ticker Law Office in York Region explains some of the reasons that wills can be challenged.

When planning their estates, people often do things that invite challenges after they are gone, such as leaving a child out of the will or not treating their children equally. They may have a very good reason for this decision, but it creates conflict later. You cannot challenge a will, at least not in Ontario, just because it is not fair. There is no law that says that parents have to treat their children equally. Now, if a parent has a support obligation for a child, that’s different. The dependent child (including an adult child) can make a claim for support against the estate, but, saying that a will “isn’t fair” won’t be enough to make a successful claim. There are several common claims against a will.

The first claim is based on the person’s lack of capacity to make a will. In Ontario, as in other jurisdictions, the capacity to make a will must meet certain legal tests. First of all, the testator (maker of the will) needs to know what he or she has by way of assets. This is why, when a lawyer meets with a client to prepare a will, the lawyer asks a lot of questions about where the client’s house is, how much it is worth, what was paid for it, where the bank accounts are, etc. A lawyer needs evidence to show that the client understands the nature and extent of his or her assets.

Second, the testator needs to appreciate who the potential claimants against the estate are. The client needs to have an understanding of potential beneficiaries and how the estate plan may affect them. If a beneficiary who normally would expect to receive a gift in the will is not going to receive a gift or a smaller gift, the lawyer will ask the client to provide some reasons for the decision. The lawyer will make notes and keep them in the file which will be helpful if there is a subsequent will challenge made by the unhappy beneficiary..

Third, the lawyer has to be satisfied that the client is not suffering from any mental illness or delusions that may affect person’s ability to make a will. Typically when I am dealing with an elderly client and there is some question about whether or not they have the mental capacity to make or change a will, or I am concerned that they may be suffering from dementia or the beginnings of dementia, or maybe depression, I advise my client to get a formal capacity assessment done. A satisfactory assessment provides evidence that they have the capacity to make a will. If the will is challenged down the road, the evidence of a psychologist or a psychiatrist to demonstrate capacity is available to defend against the challenge. Lawyer’s notes and observations are also extremely important and helpful in these cases.

Another common ground for dispute is undue influence. Undue influence means that the testator has been influenced by someone to change the will in his or her favour. Here’s a common scenario: Mom may be living with one of her daughters, Jane, in Jane’s home, and Mom really relies on Jane to look after her. Jane takes Mom to a lawyer to make a new will, and Mom leaves everything or the majority of her estate to Jane, and very little to her son, Bob. Mom had a previous will in which she treated Jane and Bob equally. There could be a very good reason for Mom to favour Jane, because Jane has done so much for her, and Bob has done very little. However, Bob may very well think that Jane has exerted undue influence on Mom. Because mom was so dependent on Jane she was easily influenced or pressured to change her plans for her estate. When a lawyer is faced with this kind of radical change in the disposition of a person’s estate, it’s important that he or she meet with the elderly client alone. Indeed, experienced estate lawyers will not meet with other family members when taking instructions for a will. When no one else is present, the lawyer can make sure that the person understands the changes they are making to the will and what the repercussions of those changes may be. The lawyer can ask if the person feels that their child has forced them to make this change. Undue influence does not just mean, “Hey mom, you know, it would be nice if you would treat me more generously in your will.” Undue influence means the person’s “will” has really been overtaken by the person who will benefit by the undue influence. Often coupled with undue influence, is the claim of suspicious circumstances, for example, where someone makes a new will very close to their death or in the hospital, or Jane takes Mom to Jane’s lawyer instead of her Mom’s, and suspicions arise as to whether or not the will really reflects Mom’s true wishes.

Quantum meruit is a claim that persons may try to make against the estate where, though they did not have a contract with the deceased, they did something to benefit the deceased or the deceased’s property. They want to make a claim for the value of the services they rendered, because even though there wasn’t a legal agreement, the deceased benefited by their actions.

We are also seeing more claims based on constructive trust. In this situation, someone is not recognized in the will, but they have performed services or they contributed money to certain assets that benefited the deceased, and there was no reason for their action other than the deceased promised them that they would be compensated. They relied on those promises or understandings to their detriment, and therefore, make a claim against estate based on the doctrine of constructive trust. This occurs often in common-law relationships where the common-law partner has not been adequately provided for in the will or there is no will. In Ontario, at present, when a common-law partner dies without a will, the surviving common-law spouse has no property rights. In order to claim a portion of the estate, the common-law spouse needs to show how they contributed to the property by paying the taxes or insurance or maintaining the property with the expectation that the property would be theirs if their partner died.

In Ontario, married spouses have a choice. They can accept the gifts they receive in the will or they can elect to apply to the Court for an equalization payment similar to a divorce situation.
There are limitation periods to make a claim against an estate, some of them as short as six months after death. Therefore, it is important to get legal advice from a professional as soon as possible.

If you, or someone you care about, is dealing with estate law issues in the Markham, Ontario Region, contact Charles B. Ticker for a consultation.

Contact Charles B. Ticker Law Office in Markham »

This article is taken from a September, 2011 interview with Charles B. Ticker, Estate Lawyer with Charles B. Ticker Law Office, a Markham, Ontario Wills and Estate Law Firm. This article and website provide general information on legal and related matters and should not be relied upon as legal advice. If you require legal advice, you should consult and retain qualified legal professionals in your area to advise you about your particular situation and the law in your jurisdiction as laws vary from province to province, state to state and country to country.