Simply being treated unfairly under a relative’s will is not grounds for you to challenge the testator’s will. However, if you believe that a close relative was forced into doing a will or they were forced into making an amendment to their will (called a codicil) by someone you may have grounds to challenge that will.
All testamentary documents (such as wills or codicils) only come into effect after the person’s death. Where the validity of a testamentary document is in question, the most important question for the court to determine is whether the document was the last will of a free and capable testator.
Challenges are generally limited to the following grounds:
- If there are allegations that the will or codicil was not executed in a manner required by law
- If there are allegations that the testator lacked testamentary capacity
- If there are allegations that the deceased did not know and approve of the document.
- If there are allegations that the document was obtained by undue influence (in the sense that the person was forced)
- If there are allegations of fraud
- If there are allegations that the document has been revoked. This is usually established by a later testamentary document or conduct of the deceased.
It is important to understand that suspicious circumstances surrounding a testamentary document of themselves are not enough. There must be good evidence to establish a fact that the will or codicil was not made by a testator who was free and capable of giving such instructions.
In matters involving challenges to a testamentary document, the court will usually make orders for the parties to attend a mediation. The purpose of mediation is for the parties to see if they can come to an agreement without the need to proceed to an expensive court hearing. If mediation has already been attempted, then court may by-pass this stage.
