Estates & Wills & Trusts

Challenging a will can be expensive, time-consuming

By Kirsten McMahon, Associate Editor

Will disputes over lack of testamentary capacity or undue influence are becoming increasingly popular, Toronto estates and trusts lawyer Suzana Popovic-Montag tells the Globe and Mail.

"Coupled with the tremendous increase in wealth that we have seen over the last few years, people are living longer," says Popovic-Montag, managing partner at Hull & Hull LLP. "As people live longer, they are, statistically, far more likely to develop a cognitive disorder or to experience cognitive decline."

The result, she tells the Globe, is that estate plans are challenged "on the basis of a lack of testamentary capacity or undue influence."

The article notes those are just two of several grounds for disputing a will.

“Challenges can also be brought on the basis of improper execution — the will is unsigned or not properly witnessed — or the testator's (will writer's) lack of knowledge and approval of its contents, or simple fraud,” the article states.

Not just anyone can mount a challenge, it continues. In most jurisdictions in Canada, only a spouse and dependent children can contest a will that has disinherited them.

“The basic test in Ontario is that you have to have a financial interest in the estate in order to have standing to challenge a will,” Popovic-Montag says.

"That means the challenger has proof that he or she had been named in a prior will," she says, "or, for example, that the testator once promised to include you if you agreed to take care of them."

While challenges may be on the rise, the article states that judges are "growing impatient with frivolous claims and notices of objection."

Previously, they would award legal costs to be paid out of the estate if they felt a losing claim was at least reasonable, Popovic-Montag says. But "we now have more of a loser-pay principle. If the judge says this is not a proper inquiry, not only are you going to pay your own costs, you are going to pay the costs of the other side as well."

In the end, disputing a will can be time-consuming and expensive and, as such, requires serious thought.

"I have so many clients come in at first instance and say, 'This is the principle of the thing: There is no way Mom wanted that, there's no way,'" Popovic-Montag says. "But when you delve into it and the evidence starts to unfold, it doesn't always pan out the way people thought.

"You have to go into it knowing what might happen,” she adds.

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