How to Avoid Challenges to your Will

by James Steele

Robertson Stromberg LLP, Saskatoon

 

Having a Will is meant to provide comfort, and to make sure your family gets their inheritance when you pass on. Yet all too often Wills are challenged in court. This can cause a lot of stress and family turmoil.  However, there are things you can do to try to avoid your own Will being challenged.

A typical case?

I practise in the area of estate litigation. Let’s take a hypothetical but common scenario, similar to ones I have seen.

“Bill” is 85 years old and lives in Saskatoon. He is a widower and has a son and a daughter. His son lives in Ontario, and does not visit Bill often. Bill’s daughter lives in Saskatoon with her family.

In 2006, after his wife died, Bill made a new Will. It gave everything equally to his two children – a pretty standard Will. The children were aware of the 2010 Will.

In later years, Bill becomes more frail and more dependent. Bill gives up his driver’s license. His goes out of his home less and less. Bill relies on his daughter for medical needs, and errands and visits. Bill feels grateful. The son doesn’t see much of this, as he is living out of province. All the while, the son calls Bill on holidays, and notices Bill is more and more forgetful, although Bill is his cheerful self.

During this time, Bill make a new Will. He uses a homemade Will kit. He asks his daughter to buy a Will kit for him, and Bill fills it out. A friend of the daughter acts as one witness, and the daughter is the other witness (a bad idea, as shown below)

Bill leaves 80% to his daughter, and 20% to his son. He gives the daughter extra, because Bill is grateful to his daughter for the help, but still wants something to go to his son and the son’s family. Bill names the daughter as executor.  Bill never tells his son about the new Will, not wishing to risk any turmoil in the family.

A challenge begins:

Bill passes away. The son learns of the new Will. The son has suspicions, and feels this unequal treatment couldn’t have been intended by dad.

The daughter tries to explain, but the son cannot help having concerns about whether his dad was taken advantage of. After all, Bill was forgetful on the phone. Thus, maybe Bill lacked mental capacity when he made the new Will? Or maybe pressure was put on Bill? After all, Bill was living alone, and maybe the daughter used her visits to pressure him?

The son decides to hire a lawyer to challenge the new Will. The daughter hires a lawyer to defend the new Will. Both sides go to court and eventually each spend tens of thousands of dollars in legal fees. Eventually they agree to a compromise, but it takes years, emotion and money.

What can we learn from the above scenario?

First, having a lawyer properly draft your Will, can be a good investment. A lawyer should know what questions to ask, and will keep good notes. The lawyer will meet with a Will-maker alone, and make sure the Will-maker is of a sound mind and is not acting under pressure.  Then, if a challenge is later brought, the lawyer’s notes can be very helpful in clearing up any confusion.

The notes of a lawyer are more independent than evidence of the daughter. Right or wrong, any evidence of a beneficiary may unfortunately be seen as potentially conflicted, as she has a personal interest in upholding the Will. The other witness – the daughter’s friend is also not totally independent, as she is a friend of the daughter.

The lawyer will also make sure the Will is executed properly (i.e. the right wording is used to describe assets, and the proper signatures are applied). Here, for example, the daughter should not have acted as a witness. A person who receives a gift under a Will, should not be a witness, as it can lead to that person’s gift being void.

Finally, a Will-maker should tell his or her children about all new Wills, and not leave surprises to be discovered only after the Will-maker has passed on. In this case, if Bill had told his son what his new Will said, the son could have asked Bill questions to clear the son’s concerns. When a Will-maker has died without explaining a new Will to a disappointed child, too often the child assumes the worst.

 Summary

People choose to challenge a Will for several reasons. The most common grounds are concerns of lack of mental capacity, or concerns of improper pressure.

In my experience, many people wish to challenge a Will because they simply do not believe the Will-maker (who is often their parent) could have intended something which may seem unfair.

However, situations of suspicious family members can often be avoided. With the right planning and communication up front, you can better ensure that your wishes are smoothly followed when it counts the most.

 

Contacting a Lawyer on this Subject

James Steele practises in Saskatoon in the area of estate litigation, including will challenges, issues surrounding executors, joint account disputes, etc.

For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.

The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations.