Challenging a Will

What can you do if you’re disappointed as a beneficiary?

A beneficiary is sometimes unhappy with their share of what they receive under a will. A spouse or child may feel that what they’ve received is less than fair, or they may not receive anything at all.

This script explains your rights and remedies in the following circumstances:

• A will appears to be unfair toward a spouse or child.
• The person making the will may not have had the necessary mental capacity to do so.
• There may have been undue influence or coercion on the person making the will.
• The person died without making a will.

Occasionally someone else, perhaps a friend or other relative (who isn’t a spouse or child), may be disappointed with what they have or haven’t received under a will. They may have a claim in “unjust enrichment” against the estate. A lawyer will need to be consulted. The remainder of this script just deals with a disappointed spouse or child.

First, is the will unfair?

If the testator (i.e., the person who died) has been unfair or unreasonable toward a spouse or child, the court may change the will, even if the will is technically valid. The new Wills, Estates and Succession Act (WESA) gives the court the power to change a will that doesn’t adequately provide for the maintenance and support of the deceased person's spouse or children.

Does “spouse” include a common-law spouse?

Yes, “spouse" includes a common-law spouse. But to be considered as a spouse, you must have lived with the testator in a marriage-like relationship for at least two years immediately before the testator’s death. Marriage-like relationships between people of the same sex are included, so a gay or lesbian partner can make a claim as a spouse of the deceased if they lived together in a marriage-like relationship for at least two years just before the testator died.

What does the definition of “children” include?

"Children" entitled to inherit from their parent’s estate includes biological children of any age, born either within or outside of a marriage, and legally adopted children. But stepchildren, or children who have been adopted by someone else, aren’t entitled to inherit from their parent’s estate.

What does the court consider?

The court considers many things to see if the will adequately provides for the spouse or children, including:

• the value and nature of the assets of the estate (i.e., the money and property owned by the testator)
• the financial circumstances of the applicant (i.e., the spouse or child asking the court to change the will)
• the financial circumstance of the other beneficiaries
• the character and conduct of the applicant towards the deceased person

The court’s main consideration will be whether the applicant spouse or child was financially dependent on the deceased), and if so, to what extent.

How does the court decide to change the will?

After considering the circumstances, the court may decide to change the will. The court will consider what a reasonable testator or deceased person would have done. If the will reflects irrational anger or favoritism or without good reason ignores the genuine needs of the testator’s spouse or children, the court will probably change the will to correct the situation. The court has the power to order that the estate provide for the spouse or children in a way that is “adequate, just and equitable” in the circumstances.

Next, consider a testator’s lack of mental capacity

Even where a will appears to meet the technical requirements of the law, a court may change the will if it finds that the deceased person lacked the necessary mental capacity to make a will. A person can be eccentric or suffer from a mental disorder and still be able to make a will. But they must have the capacity to:

• understand that they’re making a will
• understand the effect of the will
• appreciate the amount of the property they’re distributing with the will
• understand and appreciate that their will should, if possible, look after their spouse and children and not unfairly disentitle them

What happens to the estate if the testator lacked mental capacity?

If a court finds that the deceased person lacked capacity with respect to any of these elements when they made their will, then the court may decide the will isn’t valid. If the deceased doesn’t have a previous will, this would mean the deceased has no will at all, and their estate will be divided according to WESA. If the deceased person has another will, made at an earlier time when they had testamentary capacity, then this earlier will is the will.

Note, however, WESA now allows the court to look at any record, document, email or text message to see if it accurately reflects the deceased’s testamentary intentions. It can order that the administrator of the estate act according to how the deceased wanted their estate to be distributed, set out in that written recording (effectively making that recording the deceased’s will). It is unclear how the courts will interpret this new provision, but they will probably take a cautious approach. Still, if the deceased made a written record of how they wanted their estate to be handled – at a time when they had testamentary capacity – the court can look at this.

What about undue influence or coercion?

Sometimes a will seems so unreasonable or surprising that it’s suspicious. While there’s nothing illegal in suggesting to someone that they remember you in their will, the court will take away any gift or inheritance in a will that was made because of undue influence or pressure applied to the person who made the will. Undue influence or pressure can range from improper persuasion to a threat of violence.

What will the court do if there has been undue influence or coercion?

The court will cancel the will if it finds undue influence. If it’s established that a person was in a position where they potentially could have dominated the will maker or made the testator dependent on them, then that person has the burden of proving that they didn’t unduly influence the testator.

What happens if the person dies without a will?

The Wills, Estates and Succession Act applies and may provide an inheritance for a child, spouse or other relative of a person who dies without a will. Refer to script 177 on “What Happens When You Die without a Will?”

You should contact a lawyer

If you have a problem like the ones described here, you should see a lawyer. There are “limitation periods” or deadlines that must be met, which can prevent you from enforcing your right if you delay in acting. For example, if a spouse or child feels that the will doesn’t adequately provide for their maintenance and support, they must start their court action within 180 days from the date of the grant of probate (i.e., when the will is accepted by the court).

[updated June 2014]

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