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Law of Intestacy in Ontario
Ontario has statutory provisions that detail who inherits an estate when the deceased did not have a valid Will.
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Dangers of A Younger Wife
The romantic entanglement of an elderly parent in failing physical and mental health can be a nightmare for children. [read more]
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Will Challenges
Once probate is obtained the executor could distribute the assets and complicate enforcement of any future judgment. Accordingly, the first step taken would depend on whether the will was probated. If no certificate of appointment was granted the first step should be filing a Notice of Objection to prevent the Will from being probated. The Notice of Objection will set out the nature of our client’s financial interest and the grounds for the objection. As long as the objector follows the necessary legal steps, as a result of filing the notice of objection the applicant for a Certificate of Appointment of Estate Trustee (the Probate application) cannot obtain probate without the issues in dispute being litigated or resolved.
If Probate was already granted we would bring a motion for the return of the certificate of appointment and move for directions to challenge the will on several grounds.
The first ground for challenging the validity of John’s new will would be its failure to comply with the rules set out by the Succession Law Reform Act (Wills need two witnesses). Ontario requires full compliance with the formalities of execution.
As well we would investigate whether or not John possessed the capacity to make a Will.
- Did he know what property he had?
- Did John understand what he owned or remembered his moral obligations to Mary and her Mom?
This investigation would require hiring expert Psychiatric witnesses to do a retrospective analysis on the deceased’s capacity.
Another ground for challenge is that a Will has to represent the true intentions of the deceased. In this scenario there were suspicious circumstances surrounding the execution of the will and John may have been especially vulnerable to his caregiver such that any pressure exerted by Sabrina may constitute undue influence that would invalidate the Will.
Going to court in circumstances like these may or may not be the right thing to do. The purpose of this review is to provide the reader with some insight into the nature of the legal steps taken to protect one’s legal interest in an estate dispute. Despite the temptation to jump to conclusions, it would be a mistake to substitute this cursory discussion for substantive legal advice. For those considering this option, there is no replacement for hiring a competent solicitor whose own research, analysis and judgment should be canvassed prior to going to court.