Estate litigation has been increasing in Saskatchewan over the last several years. As accumulated wealth is passed on to beneficiaries, it is inevitable that a certain number will result in someone either being cut out of a potential inheritance entirely or in part. These are some of the more common grounds for contesting a will:
Lack of Testamentary (Mental) Capacity
If the deceased individual did not have the required mental capacity to at the time the will was signed, the will may be set aside. The test for testamentary capacity is relatively low and forgiving.
Failure to Follow Formal Signing Requirements
Other articles on my website discuss this in more detail. The deceased and 2 witnesses had to all be together at the same time when the will was signed. Any gift in the will to the witness or his/her spouse will be void. The witnesses had to be mentally competent at the time. However, a will completely in the handwriting of the deceased that is signed and dated (a holograph will) can be valid. There are also special rules to permit Members of the Canadian Armed Forces to sign a will.
Undue influence must be proven rather than merely alleged. A classic example is where a near stranger befriends an elderly person and convinces them to leave all or a substantial part of their assets in their will. On the other hand, if some family members are accused of turning a parent against other family members, it would be very difficult to prove that this happened through undue influence, unless fairly clear and specific supporting evidence can be shown to the court. Each case must be judged on its own unique facts.
Will was Revoked
If a will was revoked by certain acts of the deceased, then it is no longer in force.
Marriage or Divorce of the Deceased after the Will was Signed
If the deceased was either married (or became a spouse by living together 2 years or more) or was divorced after the date of the will, all or portions of the will may be deemed revoked under The Wills Act. There can be exceptions.
Family Property Act Claims
Spouses have a potential claim against each other's property under The Family Property Act of Saskatchewan. The surviving spouse may contest their deceased spouse's will if it purports to give away more than their entitlement as between them and the surviving spouse. There is a time limit for this type of action to be commenced at court.
Dependant's Relief Legislation
Every person has a legal responsibility to adequately provide for their dependants in their will. A spouse is usually a dependant. It would also include children who have not reached legal age and dependent children, such as an adult child with a mental disability. Each case is unique but in general, these people may commence action in court to set aside the will to ensure that they are provided for first. That may not necessarily mean they receive the entire estate. The court will decide what is appropriate in each case. There are time limits to commence an action at court.
Notice: The information on this website is general in
nature only. It relates to Saskatchewan, Canada and may not be
applicable in your jurisdiction. It does not constitute legal
advice to you and no solicitor client relationship will be established.
You should seek specific legal advice regarding your circumstances
from a lawyer entitled to practise law in your jurisdiction.
www.rickcarlson.com | Thu, 17 Jan 2019 08:48:43 CST1