Challenging a will in court can be a costly, time-consuming and emotionally draining experience. Family members fight. Beneficiaries can end up waiting for years as cases wind through the system.
That said, what are your chances of winning?
Litigation over wills is becoming increasingly common, said Suzana Popovic-Montag, managing partner at Hull & Hull LLP, a Toronto-based law firm that specializes in estate and trust planning.
“Coupled with the tremendous increase in wealth that we have seen over the last few years, people are living longer,” she said. “As people live longer, they are, statistically, far more likely to develop a cognitive disorder or to experience cognitive decline.”
The result, she says, is that estate plans are challenged “on the basis of a lack of testamentary capacity or undue influence.”
Those are just two of several grounds for disputing a will. Challenges can also be brought on the basis of improper execution – the will is unsigned or not properly witnessed – or the testator’s (will writer’s) lack of knowledge and approval of its contents, or simple fraud.
“The ones you see all the time are undue influence and lack of capacity, and there’s a couple of reasons for that,” said Lynne Butler, an estate lawyer in St. John’s and author of several books about estate planning.
“Mostly it is because when people are shocked or disappointed by a will, the first thing they will do, like a knee-jerk reaction, is say, ‘Well someone forced them.’ Or, ‘They didn’t know what they were doing.’ “
In such cases, she says, a capacity assessment will be performed. This is a formal assessment of a person’s mental capacity to make decisions about property and personal care.
Often, she said, a will is challenged on more than one ground. The advantage of this is that “if you can’t quite prove one, you might be able to prove the other.”
Not anyone, however, can mount a challenge. In most of Canada, only a spouse and dependent children can contest a will that has disinherited them. Otherwise, said Ms. Popovic-Montag, “the basic test in Ontario is that you have to have a financial interest in the estate in order to have standing to challenge a will.”
“That means the challenger has proof that he or she had been named in a prior will,” she said, “or, for example, that the testator once promised to include you if you agreed to take care of them.”
The key there, Ms. Butler said, “is there had to have been a promise that a reasonable person would see as a reasonable promise. And you have to have passed up other opportunities or made decisions to your own detriment because you thought you would eventually get that [legacy]. It is basically a fairness type of concept.”
Each province has its own laws concerning wills. British Columbia’s Wills, Estates and Succession Act is unique in that it also allows adult children to make a claim. Although there are no legal obligations to provide for them in a will, there is a moral obligation to do so if there are sufficient assets.
“What we have in British Columbia is your classic tug of war between the right of a parent to decide what to do with his or her assets after death, versus the moral claim that can be brought by an adult independent child,” said Trevor Todd, a Vancouver-based estate litigation lawyer.
“Outside of B.C.,” said Mr. Todd, “these daughters would not have a case. We are going to win and will get them, I hope, an equal share.”
Most people see challenges to wills as a purview of the wealthy. But even modest estates are increasingly becoming the subject of challenges, lawyers say.
“Your level of what you see as wealth depends on how you were raised and the standard of living you have now,” said Ms. Butler. “If you are a person with almost nothing, that $10,000 asset is just as good as $10-million to somebody else.”
All three lawyers, meanwhile, emphasize that regardless of the grounds, winning your case in court can be far from easy.
The onus is on the person attacking the will to prove that it is invalid, said Mr. Todd. The person writing the will is “presumed to be competent, so the person attacking the will has to prove [otherwise]. Similarly, if someone is alleging that the will was done by the undue influence of somebody, you have to prove that they unduly influenced [the testator], and it is very difficult to prove that.”
In the past, they would assign legal costs to the estate if they felt a losing claim was at least reasonable, said Ms. Popovic-Montag. But “we now have more of a loser-pay principle. If the judge says this is not a proper inquiry, not only are you going to pay your own costs, you are going to pay the costs of the other side as well.”
In the end, disputing a will is time-consuming and expensive. Those who want to try should think hard first.
“I have so many clients come in at first instance and say, ‘This is the principle of the thing: There is no way Mom wanted that, there’s no way,'” Ms. Popovic-Montag said. “But when you delve into it and the evidence starts to unfold, it doesn’t always pan out the way people thought.
“You have to go into it knowing what might happen.”
SPECIAL TO THE GLOBE AND MAIL
PUBLISHED FEBRUARY 26, 2018
UPDATED FEBRUARY 28, 2018