Blog

How to Help Avoid a Will Dispute

BY JAMES STEELE, J.D.,
ROBERTSON STROMBERG LLP, SASKATOON,
SKESTATELAW.CA

First published in Country Guide magazine, March 2022


A will is intended to provide comfort that your wishes be followed after you die. My practice focuses on estate litigation. I see firsthand how will disputes unfortunately are more common, catching families in emotional disputes. They can consume a portion of the estate in legal fees
incurred to help determine which will is valid.

Luckily, there are things you can do to help avoid your own will being challenged.
1. Go to a lawyer who has a focus on wills and estates.

A good lawyer is key to drafting a will which survives a court challenge. The most important evidence in a challenge is often the notes made when the lawyer met with you.

A lawyer should be trained to take very good notes of their interactions with you. They will ask detailed questions and document that you have capacity, understand your property, and have reasons for making the will in the way you did.

The lawyer should also meet alone with you and be able to provide evidence that you were not pressured by anyone.

2. Tell your family about the will.

This is very important. I fully understand that many parents do not want to discuss their will with their children, especially if it is not equal.

It is not illegal to make an unequal will, but be aware that doing so may cause a family rift with certain children. The benefit of telling your children about your will while you are alive is that it makes it much more diffcult for someone to challenge it later.

If you tell your children first, they will not be shocked when you die. The shock at finding out that a person has been given a much smaller gift than expected is often why someone challenges a will (rightly or wrongly). If a person hears from their parent why the parent has made a certain gift, it is
much harder for the child to later allege that the parent was confused or pressured at the time of the will.

Moreover, you may be able to answer any specifc concerns raised by your children.

Despite the above, I still see many situations in which parents resist telling their children about their latest will. It is obviously a personal issue that each person needs to decide for themselves.

3. Consider getting a medical assessment of capacity.

This is a cautious step not usually required unless someone is in a position that may give rise to an allegation of a lack of capacity.
That said, if you are elderly and wish to produce evidence to rebut any potential allegation of dementia, you may wish to attend a doctor to obtain a written capacity assessment. Give that assessment to the lawyer who drafts your will to keep on file.

4. Update your will.

Everyone should update their will throughout their life as personal and financial circumstances change.

I remember seeing a will which gave two pieces of farmland to the farming son, and cash money to the daughter. The will was made back in the early 2000s when the two gifts were roughly equal in value. However, by the time the testator had died, the farmland was worth far more. While an
outdated will is not a truly valid reason to challenge a will, the inequality of an outdated will can sometimes prompt an unhappy beneficiary into causing legal trouble.

5. Name the right executor.

This is not technically an issue that can invalidate your will, but it is good advice. You should name a capable and diligent executor
who is trusted by your family. Some persons wish to name more than one executor, to act jointly. This can be effective in some family
dynamics, but I often see deadlocks when siblings try to act jointly as executors. Thus, carefully consider if your children
could work effectively together, or if it may be better to name one primary executor.

Summary

Will challenges in Canada will get more common. There is a large transfer of wealth underway from one generation to the next. Some beneficiaries who do not receive what they were expecting often bring a challenge if they have concerns (real or unjustified) that their parent was confused or pressured when the will was made. Moreover, the statistics regrettably show that many Canadians simply do not often take time to update their will,
or sometimes even make any will at all. However, the chance of a suspicious family member can be reduced with the right estate planning and communication upfront.

Contacting a lawyer on this subject.

James Steele's practice area is estate litigation, including will challenges, issues surrounding executors, powers of attorney, etc. For more information on this subject, contact James Steele at j.steele@rslaw.com. The above is for general information only and does not constitute legal advice. Parties
should always consult a lawyer prior to taking action in specific situations.

Contributors

Contributors

Contact CAFA

Monday-Friday 8:30am-4:30pm
(Central Time)

info@cafanet.ca
204-348-3578
877-474-2871