Reference Articles > How To Avoid Challenges To Testamentary Documents
     

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This article discusses various steps that can be taken to minimize and successful defend such challenges to Wills and codicils.

Quite often we hear about someone’s Will being challenged. There are various grounds for challenging a Will. The most common are the testator or testatrix lacked testamentary capacity, there was undue influence by someone (usually a family member), or the will was not executed properly. Putting an estate into litigation causes delay and additional costs. Sometimes the challenge is a necessary evil in order to ensure that the document being presented is truly the last will and testament of the deceased. It is even better, however, to be able to defeat such claims in the beginning and ‘nip them in the bud’.

Ten Steps to Avoiding Challenges

1. Retain a lawyer. Ensure that the lawyer takes notes. Do not use a Will kit.
2. Consider possible challenges and by whom. Who are your dependants? Who do I have a moral obligation to?
3. Consider including a provision in the Will that voids your gift to them if they challenge your Will.
4. If there is any doubt (i.e. mere age of the testator) then consider building the case or verifying capacity by obtaining a medical opinion or capacity assessment.
5. Take your own notes. Record reasons for doing things which might be seems as “out of the ordinary”. Consider writing a letter to the named estate trustee or lawyer. This letter could be held in the file until the person’s death and opened only if there is a challenge.
6. Encourage family dialogue and disclosure about course of action within immediate family. Consider having a “family meeting”.
7. Read the draft Will when it is sent to you. Ask questions. Ensure that it accurately reflects your intentions.
8. Be aware of the execution process. Know what constitutes a properly executed Will.
9. Consider providing copies of your Will to the named estate trustee and/or family members.
10. Take the process seriously. You get what you pay for. As I tell my clients, you pay a 5% in commission to your real estate agent to sell your house without much debate, and is not having a proper Will just as important? (and will not cost 5% of your estate).

Challenges to testamentary documents cause delay and increased costs during the estate administration process. Knowing more about these challenges and understanding the ways in which the challenges can be resolved is also important.

For more information on estate, trust, powers of attorney or guardianship topics please see accompanying articles. Remember these articles are provided for information only and are not meant to be legal advice. Please consult with a professional.

M. Jasmine Sweatman practices at the law firm Sweatman Law Firm and can be contacted directly by telephone at (905)337-3307 or by email at jasmine@sweatmanlaw.com.