You were left out of the will – what are your options?

July 21, 2021 Ian Hull Wills Tags: , , , 0 Comments

When parents are creating their Last Will and Testament, they often direct that assets are to be divided amongst their children. However, this is not always how it works, as the testator has the right to leave their estate to whomever they want unless they have dependents who must be financially taken care of.

Indeed, some very rich celebrities – Sting, Elton John, Mark Zuckerberg, Warren Buffet and others – reportedly have said that their children will not receive the bulk of their estates. Their reasons include giving them “some semblance of normality, some respect for money, some respect for work” and “huge sums of wealth … distorts anything they might do in creating their own path.”

You may not have multimillionaires as parents, but there is the chance that when they die, you will not be named as a beneficiary in the will. If that happens and you feel you are entitled to some portion of the estate, a legal challenge to the will can be mounted. But beware – the process will be difficult and the chances of success uncertain.

The first thing to keep in mind is that only a spouse or dependent children can contest a will that has disinherited them. You have to have a financial interest in the estate and must be able to show you were named in a prior will, or that the deceased had promised to take care of you after their passing.

If probate has not already been granted, you can file a Notice of Objection with the court registrar. If probate has been granted, then you have to bring a motion for the return of the certificate of appointment.

Before doing that, it is wise to discuss with legal counsel why you are objecting to the will. If your reasons are based on emotion rather than reason, you will likely be advised to walk away and accept the situation. The court has little tolerance for notices of objections based on frivolous claims, and you may end up having to pay the legal costs the estate incurred in defending against your claim.

You also have to consider if contesting the will makes financial sense. Does the potential gain outweigh the legal costs (not to mention the time, effort and emotional stress) the process may cause?

That being said, there are valid reasons for taking legal action. The two main ones are that there was a lack of testamentary capacity when the final Will and Testament was drawn up, or that the testator was subject to undue influence by someone. Other valid reasons for mounting these challenges include:

  • the will is unsigned or not properly witnessed
  • the testator was not aware of the full contents of their estate
  • there are ambiguous terms in the will that are open to interpretation
  • simple fraud is alleged

Any of these reasons are grounds for filing a Notice of Objection. If successful, the will may be declared invalid.

Cases that come before the court include instances where a person near the end of their life leaves their estate to a much younger person who was their caregiver or romantic partner. Family members who find themselves cut out of the inheritance have to prove that the new beneficiary exerted undue influence in the writing of the will.

That is difficult, as mental capacity is a fluid concept. A person may have the capacity to enter into a marriage, but be incapable of effectively managing their own financial affairs. As the population ages, with many people holding onto sizeable financial portfolios, we will likely see more of these predatory marriages in the future.

Challenging a will in court can be a costly, time-consuming and emotionally draining experience. Litigation can pit family members against each other, straining relationships in a time when they should be mourning. Even if they win, beneficiaries may have to wait for years as the legal process unfolds.

If you feel you have been unfairly denied an inheritance, you should speak to a wills and estates lawyer. While every case is fact-dependent, they can provide you with an informed opinion about your chances of success.

Thanks for reading, and have a great day.

Ian Hull

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