Most people prepare a will in the hopes that it will make it easier and less expensive for their family to distribute their estate after they die. If your will is challenged, however, this goal can quickly become unachievable. Our Edmonton wills and estates lawyers may be able to help you prepare a will that avoids these common reasons a will may be challenged.
The Testator Failed to Provide for a Dependant
While the testator is generally free to dispose of their property in a will however they like (known as testamentary freedom), there is a limit to this freedom if the testator has a spouse, adult interdependent partner, dependent child or grandchild, or has an ongoing requirement to pay child support or spousal support when they die.
The Testator Lacked Capacity at the Time the Will Was Made
A will that is made by a person who lacks the mental capacity at the time the will is signed is invalid. Mental capacity in relation to making a will requires the testator to:
- Understand what a will is and the fact that they are making a will,
- be aware of the property they own, and
- be aware of the people in their life who may be considered dependants and to whom they may otherwise choose to leave their property.
Older individuals or individuals who are ill at the time they make their will are at risk of having a will challenged. Consulting a lawyer to help when preparing your will may allay concerns in this respect.
The Testator Was Under Undue Influence
The disposition of property as set out in the will is supposed to be the independent choice of the testator. Will challenges are often made on the basis that the testator was influenced by a friend or family member. Again, consulting a lawyer may help to prevent this, as a lawyer may ensure that they ascertain the testator’s wishes and not those of anyone else.
The Will Was Not Executed Properly
There are several forms that a last will and testament can take, each with their own requirements.
A formal will must be signed by the testator and two witnesses. There are restrictions as to who can be a witness: they must be at least 18 years old and cannot be a beneficiary under the will, or the spouse or adult interdependent partner of a beneficiary.
A holograph will does not require witnesses, but must be written entirely in the testator’s handwriting and signed by the testator.
How to Avoid Having Your Will Challenged
There are several strategies you can take if you are worried that your will may be challenged, including:
- Talking to your family about your will and what they can expect to occur when you die. By managing expectations you may be able to prevent surprised and disappointed family members from mounting a challenge.
- Involving a professional. Your lawyer may ensure that your will is prepared and executed in accordance with the requirements of the Wills and Succession Act, so that there is no basis for your will to be challenged.
- Consider making any potentially controversial gifts before you die, rather than incorporating them in your will. Not everyone can afford to dispose of property in advance of their death, but it might be a solution if you foresee that some family members will object to a particular gift.
Contact our Edmonton Wills and Estates Lawyers Today For a Consultation
Whether you are looking to draft your will, or are considering revising your existing plans, our team of Edmonton wills and estates lawyers would be happy to discuss your specific needs. Book a consultation today to discuss common reasons a will may be challenged, as well as any other questions you may have.
*The information in this article is intended as a general overview on the subject of wills and estates law, and does not constitute legal advice. If you are in need of legal advice, please speak with a lawyer.
