An individual’s last will and testament is typically ironclad when properly and legally executed during estate planning. However, there may be times when someone involved with the estate believes that the testator’s will is either invalid or unenforceable. Can someone challenge the will on those grounds? It’s possible, but this is not the dramatic or straightforward process often depicted.

Challenging a will requires substantial evidence. However, you may be able to issue an effective challenge in some circumstances after the testator passes if you work with estate lawyers in Edmonton. Let’s take a closer look at what to know about this process.

Invalid Reasons for Challenging a Will

Before digging into how challenges work, it’s important to understand when you cannot challenge a will. There are many common misconceptions about it. Save time and avoid a hassle by recognizing when a situation doesn’t allow for a dispute. Invalid reasons to challenge a will include:

• The testator didn’t use a lawyer to write their will.
• The testator wrote their own will with witnesses present for signing.
• You believe the distribution in the will wasn’t fair.
• The will excludes a non-disabled adult child.
• The testator failed to honour verbal promises about provisions.

There may be a valid reason to challenge if there is an issue beyond these reasons.

Who Can Challenge a Will?

Only specified parties have the standing required to challenge a will. If individuals do not fall into one of these categories, they cannot dispute the will. Valid challengers can include:

• The testator’s spouse;
• The testator’s adult children;
• The Public Trustee or any other person representing a minor;
• Trustees of represented adults under the Adult Guardianship and Trusteeship Act;
• Attorneys appointed under the Powers of Attorney Act;
• Public Trustee when representing missing persons;
• Heirs on intestacy;
• Personal representatives and beneficiaries of the will;
• Personal representatives appointed under a prior grant issued for the will; and
• The alleged deceased if the fact of death is an issue.

What are Valid Reasons for a Challenge?

Most valid reasons for challenges relate to issues with the will’s creation or, occasionally, the specifics of its terms. You may need to work closely with a lawyer to examine the will carefully if a challenge relies on technical problems. Other causes will require clear and abundant evidence. One might challenge a will for several reasons, including:

• The belief that the will is a forgery;
• Serious technical flaws in the creation and writing of the will such as missing witness signatures or dates;
• The testator produced another will after the creation of the first;
• The testator created and signed the will under duress or undue third-party influence;
• When writing the document, the testator did not have the legally required testamentary mental capacity; and
• The testator did not provide adequate support for dependent family members.

Claims such as forgeries or undue influence, or challenges to the testator’s capacity will require significant evidence to present a successful challenge.

When to Challenge a Will

Those who believe a will is invalid should move to challenge the document and produce evidence as soon as possible after the testator’s passing. Ideally, the challenge should be made before a court issuing a probate grant validates the will. Challenging after probate is still possible but considerably more challenging. Again, the courts expect unambiguous evidence supporting a request to discard a will as invalid. Generally, a challenge to a will needs to be done within six months of a grant of probate being issued by a court.

Find Support for Your Next Steps

As we’ve seen, challenging a will requires specific circumstances and clear evidence. Experienced estate lawyers in Edmonton can help with your next steps, whether you believe a will is invalid or wish to engage in estate planning to reduce the risk of disruptive challenges. At Lypkie Henderson, we provide in-depth support and guidance on these matters with the help of an experienced team. Contact our offices for a consultation today to learn more.