ESTATE LITIGATION: Overturning the last Will & Testament of a deceased!

When someone seeks to overturn the last will and testament of a deceased, the proceeding is known as a challenge to a will. Generally, the validity of a will is challenged for the following reasons:

1. The testator (the person who’s will it is) lacked the required testamentary capacity;
2. There is lack of approval or knowledge of the contents of the will;
3. There is undue influence; or
4. There is non-compliance with the requirements of due execution as set out in Part I of the Succession Law Reform Act (SLRA).

Furthermore, there could be, although less frequent, challenges based upon allegations like forgery or fraud. People in support of the will would have to prove that there was no lack of  testamentary capacity. They have to establish, on the balance of probabilities, that the deceased had the requisite level of testamentary capacity when the will was executed. If undue influence is an issue, it is up to those people alleging undue influence to establish that allegation. Then, there is the doctrine of “suspicious circumstances”, raising issues like the age and medical condition of the testator, the opportunity of others to exercise a degree of influence over the testator, and the significance of changes made in the will as compared to earlier versions. There are cases indicating that factual circumstances present in the case are such that it would ordinarily make one suspicious whether the will truly represents the testamentary intent of the testator at the time it was executed. If so, then there is a very heavy responsibility on those supporting the will to satisfy the court regarding its validity. Nevertheless, suspicious circumstances alone do not constitute the basis for challenging a will. These are usually considered within the context of a challenge alleging undue influence or lack of testamentary capacity.

Suspicious circumstances

It could be any or all of the following:

1. Circumstances prevailing at the time of preparation of the will;
2. Circumstances raising doubts over the capacity of the testator; or
3. Circumstances indicating that the testator’s free will was probably overcome by undue influence, coercion or fraud.

If the circumstances were indeed suspicious, then the normal presumption of capacity, including the rebuttable presumption that the testator knew and approved of the contents of the will would be in jeopardy. When suspicious circumstances are supposed to have existed, the court would be “vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does express the true will of the deceased”.

Only by proving the testator’s knowledge and approval of the contents of the will, the aforesaid suspicions would be removed   Furthermore, if the suspicious circumstances refer to madness, the presumption of testamentary capacity would vanish and the supporter of the will would have to take up again the legal burden of establishing capacity. Incidentally, both capacity and knowledge and approval must be proven in accordance with the existing civil standard.

Proceedings to challenge a will are to be commenced in the Superior  Court of Justice in the jurisdiction in which the deceased last resided. There are two ways to commence such proceedings. Should there be no Certificate of Appointment of Estate Trustee, a notice of objection is to be prepared and filed with the court as soon as possible. However, if a Certificate of Appointment is already there, an application for an order should be submitted as soon as possible, requiring the person to whom the certificate was issued to return it to the court so that the issues relating to the validity of the will may be determined.

Notice of objection (no probate)

The notice of objection tells theregistrar of the court that nothing should be doneby anybody in relation to the will of the deceasedwithout notice to the person who filed the objection, the objector. The notice specifies the interest the objector has in theestate and the grounds upon which the will is being challenged. It is to be filed with the estate registrar of the court in the  jurisdiction in which an Application for a Certificate of Appointment of Estate Trustee for the estate of the deceased would be made According to the Estates Act. No copy of the notice of objection need be served on any party, but the local registrar of the court is required to forward a copy of the notice of objection to the Estate Registrar for Ontario, who is also the Registrar for the Estates List in the City of Toronto, and hence maintains a register of all objectionsfiled in the province. Without a confirmation from the Estate Registrar for Ontario that no other application has been made with respect to that estate, and that no notice of objection has been entered in any court in Ontario, the local registrar of a court cannot issue a Certificate of Appointment.  This notice of objection remains effective for a period of three years after it is filed, and could bewithdrawn by the person who filed it at any time before the motion for directions is heard, or may be removed by order of the court. Subsequently, when an application for a Certificate of Appointment is filed, the estate registrar is to sendnotice that an objection has been filed to the applicant by regular mail to his or her address or the address of the estate’s solicitor, as shown on the application. Then, the applicant has to serve the objector with a notice advising that an application has been made to probate the will, and requiring the objector to serve and file a notice of appearance within 20 days of service. The notice to objector is to be next filed with the court, with proof of service.

If the objector fails to appear within 20 days after being served with the notice, then the objection is removed by the registrar and the application for the Certificate of Appointment proceeds as if no notice of objection had been filed. If, however, the objector shows up, then the applicant for the Certificate of Appointment of Estate Trustee is to move for directions within 30 days after service of the notice of appearance, failing which, the objector could do so.

Have as much on the record in your Estates file with your lawyer is the best defence to any challenge of your will once you have passed.  Call the lawyers at Levy Zavet PC to review your will and properly address the changes necessary to ensure it can be enforced, and that your lawyer’s will vault has enough background information to assist your executors in finding, collecting, managing and distributing all your assets from your estate when the time comes.