The first ground is a lack of testamentary capacity. If it can be shown that the testator did not have the requisite testamentary capacity at the time the Will was executed, the Will may be rendered invalid. In order to have testamentary capacity, a testator must:
- understand the nature of the act (making a Will) as well as the effect of that act;
- know and understand the extent of the property of which he or she is disposing; and
- comprehend and appreciate the claims that exist on his or her estate (i.e., his or her dependents and legal obligations).
The second challenge ground is improper execution of the Will. The validity of a Will can be challenged on the basis that one or more of the execution requirements as set out in the Succession Law Reform Act, R.S.O. 1990, c.26, were not met. For example, a valid formal Will requires that the testator sign or acknowledge his or her signature in the presence of at least two appropriate witnesses.
The third ground for challenging the validity of a Will is undue influence. A valid Will requires that there not have been any undue influence exerted on the testator and that the testator has acted on his or her own volition. A Will can be rendered invalid if it is proven, on a balance of probabilities, that the Will did not reflect the testator’s own wishes.
The fourth ground for challenging a Will is suspicious circumstances. This doctrine arises when there is the presence of certain surrounding facts and/or situations which would make an ordinary person suspicious as to whether the Will reflects the true intentions of the testator.
The final ground is fraud or forgery, which is largely self-explanatory. A Will is not valid if portions thereof and/or the signatures thereto are not authentic.
Not surprisingly, the burden of proving the invalidity of a Will on one or more of the above-noted grounds rests with the party alleging the grounds and the invalidity.
Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.