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    October 2012
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    When Wills Are Contested – Who Wins and Loses Part II

    Ed Olkovich

    My last post described the scary things that happen when families contest wills. Stephen was thinking of contesting his uncle’s last will. Here is a letter that I might write to sort out Stephen’s immediate concerns.

     Dear Stephen,

     “You asked me to explain if you can contest your uncle’s last will.  Since you have a financial interest in your uncle’s estate and are named in it, you have certain legal rights.

     You can ask a court to confirm the will is valid. This does not give you a free ticket to object, as you can be responsible for all the court costs involved in the dispute. In other words, you could pay both your lawyer and the other’s side’s lawyer.

     Your Uncles Legal Obligations 

     You explained that your uncle promised to divide his estate equally between you and your sister. This verbal statement, however, is not a legally-binding contract or legal obligation he had towards you.

     In some cases, a court may enforce a promise if you relied on it to your detriment. For example, a court may honour a promise if you spent money rebuilding your uncle’s boat because he said he would give it to you in his will.

     Freedom to Change a Will

    You told me that your uncle had no legal obligations towards you. Therefore, he was free to do whatever he wished with his estate and change his will. This assumes that he had the legal capacity to make a will. If he did not, a court could investigate and declare his last will invalid.

     What are the Issues in a Will Contest?

     If your uncle’s will complies with the legal formalities – he and two other witnesses signed it – the law presumes it is valid. A court will accept it for probate purposes unless you have legal grounds to challenge it.

     Will challenges usually involve a court assessing your uncle’s legal competence at the time he signed his will. Capacity to make a will is a legal standard that judges use.

     The legal test of your uncle’s ability to make a will – also called testamentary capacity – goes back to a court decision from the 1800s. To make a will, your uncle must know these four things:

               1.       he was making a will

              2.       the extent of his assets

              3.       who would naturally receive his assets (i.e. family)

              4.       how he was dividing his assets

     Suspicious Circumstances

     Your uncle had several strokes and was vulnerable. Your sister may have unduly influenced your uncle to cut you out of the estate. These are circumstances that you may wish to investigate further.

     You described a number of suspicious circumstances surrounding the preparation of your uncle’s will. These suggest your uncle, just before he died, made last minute changes at the request of your sister. You claim he was forgetful and confused because of his illness.

     Lawyers Notes

    • The lawyer should have prepared a file for your uncle’s will.
    • The lawyer’s file should have notes about your uncle’s last wishes.
    • A judge can review these notes to understand what happened and why.

    If your sister was present, the court can require your sister to show she did not unduly influence your uncle.

     Financial Abuse by Attorney

     You believe your sister used a power of attorney for your uncle to improperly deplete the bank account you were to inherit. You can ask a court to review transactions made by your sister and request a formal accounting. A court could order your sister to explain how she handled your uncle’s money.

    What do you do next?

     You should investigate your uncle’s reasons for making changes to his will. Your investigation may require a review of his lawyer’s file and medical records. Usually, these are available only if a judge makes a court order.

     You must also speak with witnesses who observed your uncle at the time he signed the will.

     We can discuss your options when we meet. I can give you my honest assessment and explain the costs of proceeding if you wish to challenge the will.”

     Sincerely,

    Edward Olkovich

     Wills are legal documents. Courts only find wills valid when they meet certain legal standards. Knowing these legal standards can help you avoid problems in your own estate planning.

    In the next post, I will tell you what a lawyer told Stephen’s sister.

    See my related blog post, free guide and ebook

    About Ed

    Edward Olkovich (BA, LLB, TEP, C.S.) is a nationally recognized author and estate expert. He is a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and has authored seven books. Visit his website, mrwills.com, for more free valuable information.

    © Edward Olkovich 2012

    The MONEY® Network