A will challenge is a proceeding in which someone disputes the validity of the purported last will and testament of a deceased. Grounds for challenging the validity of a will include:
Lack of testamentary capacity;
Lack of approval or knowledge of the contents of the will;
The presence of undue influence; or
Non-compliance with the requirements of due execution as set out in Part 1 of the Succession Law Reform Act (the “SLRA”).
The onus of proof of testamentary capacity rests on those propounding the will. They must establish, on a balance of probabilities, that the deceased had the requisite level of testamentary capacity when the will was executed. If undue influence is alleged, the onus of proof rests on those alleging the undue influence.
Proceedings to challenge a will should be commenced in the Superior Court of Justice in the jurisdiction in which the deceased last resided. Proceedings are commenced in one of two ways:
1. If a certificate of appointment of estate trustee has not yet been obtained, a notice of objection must be prepared and filed with the court as soon as possible; or
2. If a certificate of appointment of estate trustee has been obtained, an order must be sought, usually by way of an application, requiring the person to whom the certificate was issued to return it to the court in order that the issues relating to the validity of the will may be determined. This must be done as soon as possible.
Dependents of an estate can also make claims for support in accordance with Part V of the SLRA if the deceased did not make adequate provision for the proper support of the dependent. This is regardless of whether the deceased died with or without a will. Applications for support must be commenced within 6 months from the date on which the certificate of appointment of estate trustee was issued (SLRA, s. 61(1)).
One thing to note is that the rights and entitlements of common law spouses differ from those of married spouses in the context of claims against the estate Common law spouses are not statutorily entitled to the preferential share of the estate in an intestacy nor do they have the right to elect in favour of an equalization payment. Common law spouses have the same priority to administer the estate (no property entitlement) or to make a claim against the estate, as a dependent.