Many of us experience pain and worry when a family member dies, and we may not always think sensibly. Some beneficiaries claim that an estate was not allocated according to the Will or that they were overlooked. The majority of an estate attorney’s time is devoted to resolving conflicts among family members and other beneficiaries.
There are specific reasons to contest a Will if you are tempted to do so. As such, read on to discover everything you have to know about contesting a wall.
Understanding How Contesting a Will Works
Contesting a Will is costly, time-consuming, and requires legal advice. Official acts and processes, as well as supporting documentation, are required when contesting a Will. Because the Will’s author is no longer alive, any statements must be supported by a witness. You may be obligated to participate in mediation depending on the applicable law. If mediation is unsuccessful, the case Will be tried in court.
If a court rules that the Will is invalid, the estate Will be distributed according to an earlier Will, if one exists. It is advisable to become acquainted with the requirements of a Will before drafting one.
Moreover, in the absence of a Will, the dead died intestate. This means that provincial interstate laws Will be followed.
Grounds to Contest a Will
There are several grounds for opposing a Will, albeit each case is different.
The Testator’s Lack in Mental Capacity
If the testator lacks testamentary mental capacity, the Will is null and void. Although the finding of testamentary ability is not a medical test, the court Will take medical data into account.
Errors in Writing and Execution
Never draft your own Will; if it is drafted incorrectly, it Will be invalid.
A valid Will must be written while a testator signs in front of two witnesses. Witnesses must witness the Will in front of the testator and one another. Testators must also be at least 18 years old, unless they are in the military.
The Ignorance of Approval
The Will’s contents must be known and approved. This implies that they must be aware of and agree with the contents of the Will. If the testator did not know or approve of the provisions of the Will, or did not understand its requirements, the Will may be declared void.
A court may consider if the testator had vision or hearing problems, a language impediment, whether the Will is significantly different from previous Wills, whether the testator made unnatural dispositions, and whether beneficiaries participated in drafting the Will or persuaded the testator. Physical and emotional reliance, as well as isolation from family and friends, are additional concerns.
When Dependents or Spouses are Excluded
Dependents must be provided for in the majority of Canada, and spouses may be entitled to an inheritance. If there are no provisions for dependents or the spouse, the Will’s validity may be challenged. Even adult children can contest a Will if it unfairly divides the property.
Wives and children in British Columbia can challenge a deceased person’s Will if they “were not adequately provided for.” The courts have determined that if there are sufficient assets, there is a moral obligation to provide for adult children.
If the deceased has not adequately provided for a surviving spouse, the deceased has a legal obligation to do so, and the courts are more likely to amend a Will. Other considerations include the size of the estate, the length of the marriage, the spouse’s or child’s financial needs, and competing moral claims.
Undue influence occurs when a testator is forced, intimidated, or persuaded to change their Will.
The testator’s vulnerability, the amount of pressure used, and the degree to which the new Will varies from previous ones may all be considered by the courts. Today, new legislation altered the burden of proof in cases of undue influence. The individual accused of inappropriate influence is now required to produce evidence.
You can challenge a Will if you suspect fraud or forgery. Most fraudulent Wills include forgeries.
To contest a Will is to ask the court to declare it unenforceable. There could have been one cause for your exclusion, but there could have been others. Indeed, proving these scenarios might be tough, but an expert estate attorney can assist.
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