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Following a family member’s death, disagreements over the provisions of the deceased’s Will can lead to estate litigation. In today’s article, we provide a brief overview of the different kinds of claims that can made against Wills, including Will challenge claims, interpretation & rectification claims, and most recently, claims made under s21.1 of the SLRA.
WILL CHALLENGES
Will challenge claims intend to invalidate a Will so that it does not govern the administration of an estate.
In Ontario, a properly executed Will requires that:
- The Will must be in writing;
- The Will must be signed at the end by the testator in front of two witnesses while all 3 individuals are in the room at the same time; and
- The witnesses subscribe to the Will in the presence of the testator.
If the Will is duly executed, it is generally presumed that the testator knew and approved of the contents of the Will and had the necessary testamentary capacity. This presumption is rebutted if suspicious circumstances are proven.
The most common grounds challenging the validity of a Will include:
- Improper execution
- Approval of the contents of the Will
- Fraud or forgery
- Lack of testamentary capacity
- Undue influence and suspicious circumstances
- Revocation or supersession
- Disinheritance claims
- Legal formalities
WILL INTERPRETATION CLAIMS
Unlike Will challenges which aim to invalidate a testamentary document, interpretation claims seek Court intervention to help clarify the meaning and intent of a Will when there are ambiguities, uncertainties, and disputes regarding the internal language and provisions. These claims can be critical to making sure the estate is administered properly and in due time.
The most common grounds for Will interpretation claims include:
- Ambiguous language
- Contradictory provisions
- Definitions and terms
- Conditional bequests
- Residuary clauses
- Intentions of the testator
- Extrinsic evidence
- Beneficiary designations
WILL RECTIFICATION CLAIMS
Will Rectification claims seek to correct errors, mistakes, or omissions in the language or provisions of the Will that do not accurately reflect the testator’s intentions. These claims seek to correct these errors to ensure that the Will reflects the testator’s intentions.
The most common grounds for Will rectification claims include:
- Typographical errors
- Ambiguous or Unclear Language
- Drafting errors
- Omissions
- Inconsistent or Contradictory Provisions
- Failure to Reflect Agreements or Promises
- Misunderstandings or Miscommunications
- Legal formalities
CLAIMS MADE UNDER S.21.1 OF THE SUCCESSION LAW REFORM ACT
It has been three years since Ontario became a substantial compliance jurisdiction with the enactment of section 21.2 of the Succession Law Reform Act. This enables Wills to be admitted to probate if they do not comply with all the technical formalities outlined in sections 3 and 4 of the SLRA, but only if an application is made to the Court under section 21.1 before pursuing probate.
This will-validation provision is, however, limited in its application to other kinds of testamentary instruments. The application of this provision does not apply to electronic wills, substantively invalid wills, or any document that the deceased did not know of.
There is no guarantee that a non-compliant document will be validated under section 21.1 but there is a higher chance that a testator’s intentions will not be defeated by non-compliance with technical requirements under the SLRA!
The lawyers at Sweatman Law have the experience to advocate for you in all kinds of Will disputes. Contact us here to get in touch today!
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DISCLAIMER: This blog post should not be interpreted as legal advice for your specific situation, concerns, or challenges. All estate plans are unique and should be reviewed by legal, financial, and health professionals, and tax accountants. Please be advised that the information on this website relates to laws specific to Ontario or Canadian federal law. Legal advice, procedure, and legislature may vary in different jurisdictions.
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