Challenges to the Will:
Challenge the Will based on capacity: if it can be shown that the will-maker lacked testamentary capacity, the Will may be found to be invalid. For example, if the will-maker has been declared as unable to manage their affairs by their doctor due to mental incapacity. Testamentary capacity can be challenged on three grounds:
- At the time of executing the Will, the will-maker did not understand that they were making a will;
- The will-maker did not understand that he or she was intending to dispose of property effective on his or her death; or
- At the time of signing the Will, the will-maker suffered from mental disorder.
This illustrates why it is important to organize your estate before you fall ill: you do not want to reach a point in sickness or mental decline where you are unable to explain your wishes to a lawyer. A mental status examination may be required to determine capacity.
Challenge the Will based on undue influence: if someone coerced the will-maker into making the Will in a way that favours them or their wishes, the Will may be found to be invalid. For example, a child convinces their parent to change their Will on their death bed to provide them with a higher percentage of the assets.
Challenge the Will based on unfair distribution of assets: the Wills, Estates and Succession Act confers a moral obligation on individuals to provide for their spouse and children. A child who receives nothing in their parent’s Will may apply to the court to have the assets redistributed so that they are provided for. To vary a Will, you must be an eligible applicant under the Wills, Estates and Succession Act. This inclues:
- The surviving spouse, of the same or opposite sex;
- The common-law spouse (in a marriage like relationship for at least two years prior to the death, including same-sex); or
- The child of the will-maker, including adopted children but not step-children.
Challenge the Will based on improper execution: there are a number of technical requirements that must be met to make a Will valid. If one of these conditions are not met, the Will may be challenged on this ground. For example, claims can be brought if the Will is not signed or witnessed. Conversely, the Court may choose to uphold the Will, despite the deficiencies, if it determines that it accurately reflects the wishes of the will-maker.
Challenge the Will based on a constructive trust: if you have provided unpaid work for the will-maker and were promised compensation, you may have a claim for the assets in the will, even if you have not been specifically provided for. This is called a constructive trust or unjust enrichment.
Challenges the validity of pre-death gifts: there are a number of ways that individuals may transfer items so that they do not form part of their estate on death, and thus are not subject to the terms of the Will. If assets are transferred incorrectly, or it is your belief that they were meant to form part of the estate, the pre-death gifts can be challenged as being part of the estate. An adult child may need to defend a transfer made to them by a parent, pre-death, as a gift. This applies to transfers of property or to a joint bank account.Challenge the actions of an Executor or Trustee:
Challenge the inappropriate conduct of a trustee or executor: trustees and executors have an obligation to the will-maker to refrain from abusing their position of power. An application may be made to the Court, on behalf of the will-maker, if this trust has been breached, to remedy the situation. For example, if an executor has not followed the terms of the Will or is misappropriating the assets for their own benefit. Executors or trustees can be removed by the court if they are deemed to be unfit for their position. Information regarding the removal of executors and trustees can be found in section 142 of the Wills, Estates and Succession Act and section 30 of the Trustee Act.
Disputes between trustees: often, will-makers will designate more than one individual to be the Executor of their estate. They may also require the executors to make decisions unanimously. When executors disagree on the appropriate course of action, an application to the court may be necessary to resolve the dispute. A lawyer can help you understand your responsibilities and potential liabilities as an executor or trustee. Defensive estate planning techniques:
Protection for step-children: there is no moral obligation to provide for step-children in the Wills, Estates and Succession Act. This means that if you pass away, leaving your assets to your spouse, your children from a previous relationship may not be provided for. This can be remedied in a multitude of ways by hiring an estate planning lawyer to organize your assets.
Unequal treatment of children: you may wish to leave more assets to certain adult children if they are more dependent on you than others. Because unequal division can be varied by the court, it is important to hire an estate planning lawyer to ensure that your assets are divided in accordance with your wishes.
Probate tax: when your assets pass through probate, they will be taxed. There are ways to avoid this using various estate planning techniques. This is particularly important for those with high value assets. For example, you may wish to legally transfer assets out of your possession before you pass, in order to diminish the total value to be taxed in the estate.
Protect disability benefits: if a beneficiary of a will receives a large inheritance from a will, they may be disentitled from their disability benefits under the Employment and Assistance for Persons with Disabilities Act. This can be an unintended consequence of dying intestate which is one of the reasons why it is important to consult with an estate planning lawyer.