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Send Us a MessageA Note on Will Challenges
Everyone has the right to manage their affairs as they see fit. It is in our personal freedoms and rights to determine what happens to us, our assets, and our belongings once we have passed on. However, if you suspect that something is not right with a loved one’s will, you may contest it in some scenarios.
Contesting, challenging, or seeking clarification about a will is complicated. Those interested in contesting a will in Alberta must follow specific procedures and conditions. Suppose you are considering contesting a will or are currently contesting a will. In that case, it is crucial to partner with a qualified estate litigation lawyer to approach your case properly.
There must be a valid reason to begin the process of contesting a will in Alberta. If there is no will or the will is not valid, you will need to enter into the litigation process.
For a will to be valid, it must — at the very least — be in writing as a physical document. It must be dated, and the testator (the person who wrote the will) must be of sound mind and over the age of majority in Alberta. A formal will must signed with two witnesses present who are not a named executor, an executor’s spouse, a beneficiary, or a beneficiary’s spouse.
Handwritten or holographic wills can also be valid. They are an alternative to a printed will or a will drafted by a lawyer.
One might want to contest a will, but their reasons may not have solid legal standing. For example, the following are insufficient grounds to contest a will:
Ultimately, a will cannot be challenged because you feel the testator was unfair or forgot to include you in their will. However, a will is a binding legal document, so there must be sufficient grounds to contest the will.
Contesting a will is a serious matter. There are certain expectations about who can file to commence estate litigation and the reasonable grounds for doing so. Typically estate litigation is available to the following individuals, albeit under specific circumstances:
Although the above individuals are eligible to contest a will, they still require valid grounds.
Testamentary freedom is a right firmly enshrined in the Alberta court process. Suppose there are insufficient grounds for a legal challenge. In that case, there is little chance of your estate litigation being successful in Alberta courts.
The following are the eligible principal grounds upon which one can contest a will in Alberta courts.
Suppose there is a belief that the testator was unduly influenced or under duress when making or changing the will. In that case, this can be grounds for a legal challenge. Undue influence or duress means that another person put pressure on the testator to include or exclude specific provisions within the will.
Although it is technically valid to contest a will based on undue influence or duress, it isn’t easy to prove that other parties had enough influence over the testator. You must confirm with significant evidence that the testator was coerced to the point of acting against their best interest.
As one does not legally need a lawyer to write their will, claims of forged and fraudulent wills can emerge. This is why an estate planning lawyer can be useful in the will writing process to avoid challenges down the line.
These claims of forged wills are more common with handwritten wills, also known as holographic wills. Claims need to be substantiated by handwriting experts.
As for fraudulence, this is challenged on the basis of a person of influence lying and giving false information to the testator to influence his testamentary instructions deliberately. As with claims of undue influence, these claims can be challenging to prove in Alberta courts.
This is another reason why it is a good idea to seek advice from estate planning lawyers when creating your will. A will must be legally valid to pass through Alberta courts. The three conditions under which a will is legally valid are as follows:
The final condition is not strictly necessary for handwritten (holographic) wills. However, other issues of validity can often arise with holographic wills. These conditions also apply to any changes (known as ‘codicils’) made to the will. Otherwise, they will be deemed invalid.
Due to these strict requirements, it is helpful to enlist the help of an estate planning attorney when planning your will. This can ensure you avoid costly mistakes and unnecessary estate litigation in the future.
This is the most common ground for contesting a will. One can claim that a testator did not possess the necessary mental capacity to alter or write their last will. If a lack of mental capacity is sufficiently demonstrated to the courts, a will can be declared invalid.
In order to demonstrate a lack of mental capacity, one must demonstrate at least one of the following:
Suppose one of these is demonstrated to the satisfaction of the court. In that case, a will can be declared invalid due to mental incapacity. The deceased person’s estate can be distributed through the acts within a prior will or through the court’s intervention.
Alberta’s estate administration laws dictate that dependent family members are entitled to receive adequate support from the testator’s will.
It is not acceptable in Alberta to disinherit a dependant, whatever the reason may be. This can include an adult interdependent such as a spouse or common-law partner, as well as a dependent child. A dependent child can refer to minor children or adult children with a physical or mental disability that renders them dependent upon the testator.
However, the specific amount that constitutes ‘adequate support’ for dependents can depend on various factors. Again, it is a good idea to consult with estate litigation lawyers about your legal options.
If you have valid grounds to contest the will, you must apply to the court to challenge it. An estate litigation lawyer can help draft a demand letter on your behalf informing the estate’s executor that you have an interest in the estate.
If you are interested in contesting a will in Alberta, you should do so as soon as possible. Contesting a will becomes much more difficult once probate is granted. Probate generally means the will has been validated in court. Therefore, contesting a will once probate is granted requires introducing significant new evidence into the record.
Contesting a will is a challenging matter. If you are seeking legal help to contest a will in the Alberta court system, please reach out to our team at DLegal. We are ready to help you.
Please note that this is simply a general overview of the subject and does not constitute legal advice. Consult a lawyer for formal advice pertaining to your specific situation.
The DLegal team is here to support. We will do our best to assist or connect you with those who can help.
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