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Contested Probate Cases: What Happens When a Will is Contested?

Contested Probate Cases What Happens When a Will is Contested Featured Image

The death of a parent can be a difficult time for all involved, and this heartbreaking loss can deepen divisions between siblings and other family members. Money and property is usually the issue that causes problems to arise after a parent’s death.

Contested probate cases are cases where a deceased person’s will is challenged by their spouse, children, or other dependents. It usually occurs when one feels like they have been treated unfairly.

Read on to learn more about contested probate cases and what happens when a will is contested.

What is a Will?

A will is a legal document that outlines how you would like your assets to be distributed and how your minor children will be cared for in your death. It consists of a document containing your wishes signed and dated in front of two witnesses who are not beneficiaries of the will.

If you die without a will, your wishes may not be carried out, resulting in your heirs having to spend extra time, money, and emotional energy to settle your affairs after your passing.

What is a Will Contest?

A will contest is a formal objection made by a party that has been partially or fully left out of a will and has legal grounds to challenge the will. They may do this because they believe the will to be invalid or that the testator was coerced into writing it. A will can be partially or entirely contested.

Who Can Contest a Will?

Not everyone is eligible to contest a will. Here is a list of people or parties who are capable of contesting a will:

  • Beneficiaries who are already present in the will.
  • Beneficiaries who were named in a previous version of a will but were later written out or had their portion significantly decreased in the new choice.
  • Anyone not named in the will but, according to the intestacy laws of the province, is eligible to inherit the property if there was no will. This could be a spouse, child, or next-of-kin.

What are the Grounds for Contesting a Will?

Grounds of challenging a will cannot be as simple as you feeling that you were given an unfair inheritance or you thought you were entitled to it. It would be best if you had proper reasoning behind your challenge.

Here are a few grounds for contesting a will that most courts will consider:

Lack of Mental Capacity of the Testator

A will may be deemed invalid if enough evidence supports that the testator lacked the requisite mental capacity to make a will. For the will to be valid, the testator must:

  • Understand that they are making a will that distributes their property to beneficiaries in the event of their death.
  • Know the property that they own and is being distributed.
  • Have an idea of the people who expect to inherit from them, such as family members or spouses.
  • They must be free of debilitating mental illnesses such as dementia and delusions, which may impair their judgment.

Invalid Execution

This is the area where lawyers get the most leverage. If there are discrepancies found, it may invalidate the will. To have a valid will, it must be signed by the testator in the presence of two witnesses.

The witnesses must be both in the testator’s presence and themselves, and they must be at least 18 years old (19 in some provinces). Witnesses cannot be beneficiaries of the will, nor can they be married to an heir.

Also, if the will is updated or modified, the new will requires two witnesses.

Holographic or hand-written wills may be accepted in certain cases but only at the discretion of the provincial laws or the court.

If any of the above is found to have not been properly adhered to, there are valid grounds for a contest.

Lack of Approval

If a testator is unaware or disapproves of the contents of their will, or if the testator did not fully comprehend the implications of choice, it may be deemed invalid.

Factors that a court may consider when determining whether the testator had sufficient knowledge and approval include:

  • The testator may have had physical difficulties such as visual impairment.
  • The testator may have faced a language barrier.
  • The will may have significantly changed from previous ones, and the testator made some unnatural decisions.
  • The beneficiaries may have manipulated the testator.
  • The testator was physically or mentally dependent or suffered from isolation from their friends and family.

Dependents and Spouse Were Not Included

In most provinces in Canada, some laws deem that depending on a testator must be taken care of. If there are no adequate provisions for the dependent, there are grounds for the will to be challenged.

Even adult children may make challenges if the division is considered unfair. Even though there is no obligation to provide for adult children, there are moral obligations if the size of the estate is deemed sufficiently large.

If a spouse has not been adequately provided for, they have grounds to pursue a contest on the will. The courts will also consider factors such as; the amounts the assets, the length of the marriage, and the financial needs of the spouse and children.

Under Influence

This is the most common ground for contesting a will. When a person influences a testator by using fear, force, or coercion, it may have occurred due to undue influence. The court must prove that there was enough influence over the testator that their free will was overpowered.

The court may consider factors including the testator’s vulnerability, the amount of pressure the testator faced, and whether the new will is radically different from previous iterations. Due to new legislation, the person alleged to have influenced the testator must prove that they did not do so.

Fraudulent or Forged Wills

You may consider contesting a will if you think it was forged or if there was fraud involved. It might be the case that the will was not made and signed by the testator but rather someone else seeking to benefit from it.

It can also be the case that another party influenced the testator to remove someone from their will using false allegations against that person.

Although these allegations may be difficult to prove, you can successfully contest the will if there is sufficient evidence.

What Happens When a Will is Contested?

Contested probate cases are usually heard in civil court, where a judge hears all evidence available and makes a ruling. Multiple outcomes can occur as a result of these cases going to court:

  • The court may decide the case is valid, and the executors should continue according to it.
  • The court can remove an executor and appoint a new one in their place.
  • The court may decide to declare a will valid regardless of an issue with its validity, such as it being signed in the wrong place—also called will rectifying.
  • The court may declare a will invalid and deem a previous one to be used instead.
  • The court may declare a will invalid and rule order to divide the estate as per provincial intestacy rules.
  • The court may decide to alter the terms in a will entirely.


If you’re considering contesting a will, you require an experienced family lawyer who will pursue all available avenues to ensure you get the right solution. You must be prepared for the contest to be lengthy and drawn-out.

Another thing to consider is the cost of the proceeding and whether it is worth it to pursue legal actions in the first place. Edmonton Family Lawyer, we can be of service to you if you decide to go ahead.