Wills & Estate Lawyer

A will can be challenged by spouses, children, and sometimes grandchildren if they feel they haven’t been adequately provided for. When deciding if a variation is warranted, the court considers the estate’s size, the deceased’s will, and any competing moral obligations. 

This process requires legal assistance from lawyers with extensive experience in wills variation and disputes. Every wills & estates lawyer at Sidhu Legal prioritizes open communication, integrity, and individual attention to guarantee you get the help and direction you require throughout the legal procedure. 

Causes of Will Variation and Disputes 

Lack of Testamentary Capacity

As a fundamental concept in estate law, the lack of testamentary capacity is often cited as the main cause of will disputes and variations. Testamentary capacity is influenced by multiple important factors:

Factor Details
Understanding The person making the will needs to know what it is and why they’re making it. They need to know that it says how their property will be distributed after they die.
Extent of Property They should know about their assets and what will happen if they’re distributed.
Identification of Beneficiaries The testator needs to be able to name the people from whom they want to receive their inheritance.
Freedom from Delusions Their decisions shouldn’t be affected by any mental illnesses or delusions.
Absence of Undue Influence Coercion or pressure shouldn’t influence the testator’s decisions.

Undue Influence

It’s an important reason for wills variation and disputes, which emphasizes the need to protect vulnerable individuals from manipulation. It guarantees that their last wishes are fulfilled according to their actual desires.

  • Unwanted influence usually happens in relationships where one person has power or authority over the testator.
  • The influencer may cut the testator off from other trusted people, which makes it harder for them to get proper advice.
  • Individuals who are older, mentally or physically weak, or who are losing their mental abilities may be more easily swayed.
  • Subtle and sneaky forms of undue influence include flattery, playing on emotions, or forcing someone to do something while pretending to care or help them.
  • If the influencer has much power over the testator’s assets or business, the testator may feel afraid and have to do what the influencer wants.

Undue influence can only be proven if the party making the challenge can display proof that:

  • The chance for the influencer to use their influence unfairly on the testator was present.
  • Someone with influence benefited from a disposition in the will.
  • The activities of the influencer diminished the testator’s capacity for free choice.

Fraud or Forgery

What is Fraud?

There are several ways in which will-related fraud can manifest, such as:

  • Misrepresentation. Giving the testator misleading information to sway their decisions about asset distribution.
  • Concealment. Leaving out important details on purpose so the testator doesn’t fully understand what’s happening.
  • Falsification. Changing a will or making a fake document to trick the testator or beneficiaries.

What is Forgery?

Forgery is when someone signs a document in another’s name without permission or uses false information. Charles Montaldo, a licensed private investigator working with law enforcement agencies and insurance companies investigating crime and fraud, says forgery can happen in the will-related context when:

  • The signatures of the testator and witnesses on the will are falsified.
  • The whole will is made up without the testator’s knowledge or permission.

Dispute Resolution

The party contesting the will’s validity usually has the burden of proof in fraud or forgery situations. They have to give enough proof to show that fraud or forgery happened and that it changed the will’s contents in an impactful way.

Family Maintenance and Dependants

Eligible claimants can change a will or sue the deceased’s estate if they believe they were underprovided for. Reasons for variation include:

  • Financial needs. Claimants must prove that the will didn’t cover their financial needs.
  • Moral obligation. If the deceased’s family and dependants were financially dependent on them, courts may consider their moral duty to provide for them.
  • Any other relevant factors. The estate size, the claimants’ financial resources, and the testator’s relationship with them may influence the court’s decision to change the will.

Court Considerations

When deciding to change a will or order family maintenance, the court may consider the following:

  • The claimants’ financial situations and available funds.
  • The deceased’s intention and reasons for distributing their estate according to the will.
  • The claimants’ and the deceased’s relationship type and length of time together.
  • Any claims that are contrary to the estate.

Improper Execution of the Will

Legal issues arise when wills aren’t properly created and executed. Due to concerns about the document’s validity and authenticity, improper execution can lead to disputes and variations. 

Proper execution ensures the testator’s final wishes are recorded and legally binding. In order for a will to be deemed valid, certain legal criteria must be met depending on jurisdiction.

Services for Wills Variation and Disputes

Initial Consultation and Case Evaluation

This initial step allows the client to discuss their concerns, goals, and dispute details with a qualified lawyer.

  1. The lawyer will gather information about the deceased, the will, the parties, and any relevant evidence or documentation.
  2. Using client information, the lawyer will identify the legal issues in the dispute. If the client has a valid claim for contesting, the will will also be assessed. 
  3. Lawyers will discuss dispute resolution options like negotiation, litigation, mediation, and arbitration.
  4. Your lawyer will advise you on how to proceed with your case. They will evaluate the client’s case honestly, considering evidence, legal precedent, and court success. 
  5. The lawyer can also discuss dispute representation costs and fees during the initial consultation.
  6. The initial consultation establishes trust, communication, and understanding between the client and the lawyer.

Legal Representation for Contesting a Will

A comprehensive will contesting legal service helps clients navigate will variation and disputes. The lawyer prepares comprehensive strategies to contest the will, including gathering evidence, identifying key witnesses, and defending.

It’s common for attorneys to handle the following matters when representing clients in a will contest:

  • Drafting and submitting various court documents.
  • Notice of objection to probate.
  • A statement of claim.
  • An affidavit in support of the client’s position.

Mediation and Alternative Dispute Resolution

Disputes can be resolved through various non-judicial processes, including mediation and alternative dispute resolution.

Mediation and Alternative Dispute Resolution Procedure

  1. Pre-mediation preparation. Each party meets with the mediator or arbitrator to discuss their concerns and prepare for the mediation or ADR session.
  2. Joint meeting. The mediator or arbitrator leads a joint session where the parties discuss the dispute and possible solutions.
  3. Caucuses. To explore interests and negotiate, the mediator or arbitrator may hold private caucuses with each party.
  4. Agreement. Upon reaching a consensus, the parties sign and document the agreement.

Court Representation and Proceedings

Lawyers provide important court representation and proceedings to people involved in wills disputes and changes. As part of this service, the lawyer helps the client through the legal system and looks out for their best interests in court. Court representation and proceedings for wills variation and disputes include:

  • Legal Knowledge and Representation
  • Legal Procedures Preparation
  • Legal Documents and Filings
  • Making a Case and Presenting Evidence
  • Discussing Settlements and Negotiations
  • Meeting Legal Requirements and Time Limits
  • Post-Trial Appeals and Proceedings
  • Communication and Support for Client

Seek Justice With Sidhu Legal

Will variation and disputes ensure fairness, protect vulnerable people, and uphold the legal system. This ensures that testators can give away their property however they want, and it also gives people a way to challenge a will that they think is unfair or wrong.

During court proceedings, lawyers provide their clients with ongoing support and communication. If you need help with a will or estate, a power of attorney, an insurance claim, or any other legal action or document, Sidhu Legal can help. Our attorneys work hard to ensure our clients feel supported and well-informed during the litigation process.

Frequently Asked Questions

What happens once a will is successfully challenged?

If someone successfully challenges a will, the court may order a change to the will to better reflect the testator’s wishes or meet the needs of eligible beneficiaries. This could include:

  • redistributing assets
  • invalidating some provisions of the will.
  • directing the execution of a new will.

Within what time frame can I challenge a will?

In Canada, the general time frame to contest a will after someone’s death is two years. This period doesn’t start from the date of death but from when a reasonable person would have known there were grounds for the challenge, usually when informed about the will’s contents. However, this can vary if important information is unavailable at that time. If fraudulent concealment is discovered later, a challenge can be brought within two years​​.

Is it possible to challenge a will if I am completely excluded from it?

Yes, you can challenge a will even if left out entirely. The success of your challenge will depend on factors like your relationship with the deceased, how the will was made, and specific laws in your area. An estate planning lawyer can advise clients on their estate planning needs and navigate the probate process, including wills variation claims and probate fees. They offer estate services and guidance on personal planning and business law to protect your rights.

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