Is your will foolproof? How to avoid challenges to wills

BY: VALERIE DYE

Now that we have entered a new year some persons may be thinking of making a will to ensure that their estate is managed smoothly after they die. Although making a will is very important, it is equally important to ensure that the will is foolproof and will not be challenged in court after you pass away. The Courts are replete with actions brought by disgruntled loved ones who seek to challenge a will. What are some of the things that can open a will to challenges in court?

One of the grounds for challenging a will is that the testator may not have had the capacity to make a will. Lack of testamentary capacity most often occurs if the testator does not have the presence of mind to understand that he or she is making a will. The testator must also understand and be aware of the amount of property he or she owns, understand the extent of what he is giving to his beneficiaries under the will and remembers the people who should normally benefit under the will. Once suspicious circumstances are found, then the persons seeking to probate the will must prove that the testator had the capacity to make the will.

As highlighted in cases such as Laframboise v. Laframboise, 2011 ONSC a testator may have a mental disorder but still have the capacity to make a will. In that case, the court found that despite the fact that the testator suffered from depression and mood swings he still had testamentary capacity. A testator may suffer from memory loss and other cognitive challenges or be unable to take care of himself but still, have testamentary capacity.  In Re Weidenberger Estate, [2002] A.J. No 1157 the court stated that: ‘The fact that the deceased was mentally ill and suffered from confusion is not determinative as to whether the deceased did or did not have the requisite testamentary capacity. Cognitive impairment or confusion alone is not grounds for declaring a person incapable of making a will.

Even a testator who suffers from delusions may still be found to have testamentary capacity unless the delusion is of the type that is classified as insanity and affects his judgment in relation to his property and beneficiaries. 

It is clear that having mental health issues does not in itself mean that a person lacks testamentary capacity. However, one way to safeguard against allegations of testamentary incapacity is to make a will before the occurrence of advanced age or advanced illness.

Wills can also be challenged on the ground that there was undue influence or duress exerted upon the testator that caused him to dispose of his property in a way that he did not wish to. The risk of undue influence is greater with a testator who is old and depends on someone to take care of him.  As stated in Duschl vs Duschl Estate a claim of undue influence may succeed if it is shown that the testator was placed under such coercion that if he could speak, he would say “This is not my wish, but I must do it’.  However, it is not enough to show that the party benefitting under the will had the power to coerce the testator. That person must have actually exercised that power and caused the testator to make a will against his wishes. One way of preventing claims of undue influence is to ensure that beneficiaries are not present when the will is being made. Furthermore, it is important to note that if a beneficiary or his or her spouse witnesses a will, the gift to that beneficiary will be void.