This month, I spoke on estate planning for the University of Alberta to a packed house. Who would have thought this would be such a popular topic? I did the estate planning workshop with my good friend Avideh Musgrave who is a lawyer that speaks on wills and estates. One of the things she talked about in the session is not only the importance of having a will but the importance of having a will that is less likely to be challenged. Having a good will in place can really create more peace of mind.
This week, I addressed a common question I get – Should you write your own will? Although you can write your own will it is often not advised because of the potential problems it can create. One of those potential problems is the risk of having a will challenged. Here’s some information from Avideh that I thought was important to share.
What are some circumstances where a will would be challenged?
Challenging a Will normally refers to disputing the validity of a Will. Here are a few common legal circumstances where a Will might be challenged:
Lack of testamentary capacity.
According to Wikipedia, testamentary capacity is the legal term used to describe a person's legal and mental ability to make or alter a valid will. This concept has also been called ‘sound mind and memory’. Adults are presumed to have the ability to make a will. One reason why a Will might be challenged is when someone believes the person making the will (called the ‘testator’) did not know the consequence of his/her conduct when he/she executed the will.
The” testator” must understand the nature and effect of the document that gives instructions about what will happen to their property and the nature of the property that will pass to the named heirs. The testator must also be aware that there are certain persons who should be considered when making the Will. Some examples might include a dependent spouse or children.
Undue influence refers to the concept of pressure or coercion upon the testator, to the extent that he or she no longer has the ability to make an independent decision. A Will can be declared invalid by the Court if a finding of undue influence is made concerning the circumstances when the will was created.
The presence of suspicious circumstances can sometimes invalidate a Will even if lack of testamentary capacity or undue influence cannot be proved. For example, if the testator went to 3 different lawyers within a short period before finding a lawyer who was willing to prepare the Will, such circumstances might be considered suspicious and the will could then be challenged.
This challenge to the validity of a Will is made on the basis that it is not the document the testator intended to sign. This ground of challenge is rarely used because it is very difficult to prove.
If the person making the will knows or suspects in advance that the will may be challenged by someone, they need to go to get a professionally drafted Will by a lawyer. They would want the lawyer to insert a special clause discussing and explaining the intention of your decisions…especially if you have disinherited a family member who has expectations that s/he is in the Will. Also, you would want the lawyer to draft a medical letter for the testator's attending physician to sign regarding mental capacity very close to the date the will is being executed.
It is so important to have a will be even more important to have a will that is drafted and worded properly. In my experience, the biggest problems I have seen usually come from will kits, handwritten wills, old outdated wills or no will at all.