Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

When is a Will not a Will?

When is a Will not a Will?

By:

Posted January 4, 2016

There is a massive transfer of wealth currently happening in the province, and across the country, from the baby boomer generation to their children and grandchildren.  And everyone has a hand out wanting a piece of that pie.  As a result, there have been a significant number of law suits generated challenging the validity or enforceability of a will left by a deceased.  There are, however, only a limited number of circumstances under which a will can be challenged. The most commonly used challenges are:

Improper Execution

A will that has not been properly signed and witnessed as provided in the laws of Ontario is invalid, and can be set aside in a court of law.

Undue Influence

A will can be set aside if a person or group of persons have pressured, intimidated or otherwise influenced the deceased in the preparation of his/her will.

Against Public Policy

A provision in a will that is found by a court to be against public policy will be found to be invalid.  A recent example of the application of this principle can be found in the case of Spence v. BMO.  That case involved a father and two daughters.  The father had had no relationship with one of the daughters, and was very close to and had provided money to the other daughter.  That daughter told her father at one point that she was living with a man of a race different from theirs, and was going to have a baby with him.  The father, upon being advised of this, stopped his communication with that daughter, and changed his will, cutting out that daughter entirely and leaving his estate to the first daughter from whom he had been estranged.  The court set aside Mr. Spence’s will as being void as against public policy.  Although this case is under appeal, there is judicial authority in earlier cases for this principle, and estate planning lawyers are now delving more closely into motivations behind wills to reduce the likelihood of a challenge on this basis.

Family Law Act

A spouse, instead of taking his/her inheritance arising from a will within six months of the date of death, may elect instead for an equalization of net family property under the Family Law Act, a complex calculation that evens out the value of the assets of each spouse accumulated during the marriage.

Dependant’s Relief

A person who is the dependent of a deceased can challenge a will, to the extent that the will doesn’t adequately provide for that dependent.

It is our responsibility to advise our clients with regard to their estate planning needs to do our best to create an estate plan that can survive a challenge on any of the above grounds.

This blog post was written by Ted Mann, a Partner in the Wills and Estates, Real Estate, Business and Bankruptcy teams.    He can be reached at 613-369-0368 or at ted.mann@mannlawyers.com.

 

More Resources

Blog |
Family Law

By: 

Posted May 25, 2022

Cohabitation agreements and marriage contracts (or “prenups”) are common contracts for couples to enter into prior to moving in together or getting married. Reasons for[...]
Blog |
Wills, Trusts and Estates

By: 

Posted May 17, 2022

I am often asked the question of whether the will-maker should disclose the contents of their will to their beneficiaries.  In some situations, the will-maker[...]
Blog |
Real Estate

By: 

Posted May 10, 2022

The More Homes for Everyone Act, 2022 (“Bill 109”) received Royal Assent on April 14th, 2022. Some sections of Bill 109 will come “into force”[...]
Blog |
Real Estate, Wills, Trusts and Estates

By: 

Posted May 3, 2022

As we all know, house prices are skyrocketing in the region, and this in turn has resulted in parents providing assistance to children who are[...]
Blog |
Employment, Labour, and Human Rights

By: 

Posted April 26, 2022

The mediator’s reaction to my client’s disclosure that she had secretly recorded her conversation with her boss was one of dismay.   He made it clear[...]
Blog |
Family Law

By: 

Posted April 25, 2022

Family law litigation can be a particularly complicated and expensive legal endeavor exacerbated by the emotional difficulties of a fractured relationship. These matters become even[...]

Subscribe to Our Newsletter

Name*
Consent*
This field is for validation purposes and should be left unchanged.