What is challenging a Will?

If you believe a loved one wrote a Will while lacking the proper mental capacity to fully appreciate their actions, or if you believe that someone interfered in the writing of the Will, you may be able to challenge the validity of the Will to have the Will set aside.

Who can challenge a Will?

Only a spouse or child of the deceased can apply for a Wills Variation Action to vary a Will. However, anyone can apply to the courts to challenge the validity of a Will.

How can I challenge a Will?

A Will can generally be challenged for three reasons: invalid execution, testamentary incapacity, or undue influence.

A Will can be found to be invalidly executed if it does not conform to the rules set out in the Wills, Estates and Succession Act. For instance, a Will must be in writing, signed and witnessed by two individuals who are not beneficiaries of the Will.

Arguing testamentary incapacity means arguing that a Will is invalid because the will-maker lacked mental capacity and was not well enough to understand the nature of their actions in executing the Will. For instance, a loved one suffering from dementia may have lacked the proper mental awareness to have executed a valid Will.

Arguing undue influence means arguing that someone interfered in the will-maker’s autonomy and independence in drafting the Will, such that the Will does not reflect the true and free intentions of the will-maker.

What happens if I challenge a Will?

If the validity of a Will is successfully challenged, any previous Will written by the deceased will come into effect. If there are no prior Wills, the estate will be distributed in accordance with the Wills, Estates and Succession Act as if the will-maker died intestate, which means without a Will.

We hope that this article has given you a better understanding of the legal advantages of challenging a Will. Should you have any questions regarding your rights with regards to being left out of a Will, please give us a call at 604.449.7779 or fill out our general intake form and we will be more than happy to assist you.