CONSIDERATIONS IN MOVING FORWARD WITH A WILL CHALLENGE

In my experience, it’s quite common to have a call with a potential client that involves the following situation:

  • The potential client has concerns about their relative’s last will and testament. The relative’s Will was changed shortly before the relative’s death, reducing the potential client’s share of the estate, or removing the potential client from the Will entirely.
  • The relative exhibited memory issues and confusion in the years leading up to their death. The relative may have also shown signs of paranoia or behaved in previously uncharacteristic ways.

In some cases, the facts provided by the client strongly suggest that the relative was unlikely to have had the capacity to make the disputed Will. However, most situations do not fit into this category and there are often many gaps in the potential client’s knowledge.  This is often because some key information and documentation is not available to review.  For instance, documents such as medical records and the file of the lawyer who prepared the Will are not normally going to be available until a court Order is obtained for their release. But one cannot obtain such an Order without first starting a court application to challenge the Will.

Once the Order for production of documents is obtained and the medical, legal, financial, and other documents are reviewed, the case may look quite different than it initially appeared.  It may be a better or worse case than the lawyer initially might have thought given the very limited information that was first available. For this reason, it is very important to re-assess the strength of a Will challenge case at each step of the litigation process.

On a related point, a client should not wait too long to challenge the validity of a Will. The estate trustee named will be busy administering the Estate and will eventually distribute the assets if they aren’t prevented from doing so through a court Order which ties up the administration. This type of Order is typically granted when a Will is challenged. As well, it is extremely important that a limitation period not be missed, as a limitation period could have the effect of blocking a Will challenge from proceeding. (Legal advice will be required to determine when the limitation period begins to run as the particulars of each situation must be considered.) But, generally speaking, while some things may age well, a Will challenge case is not one of them and it’s generally best to commence a claim as soon as possible.

 

Angelique Moss

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.