The Wills, Estates and Succession Act (WESA) permits a child or spouse of a deceased to ask a court for a larger share of the will-maker’s estate if the will-maker failed to provide proper support for that child or spouse.

Courts may consider many factors in determining whether the child or spouse is entitled to a larger share:

• The station in life of the child or spouse
• The financial need of the child or spouse
• The future needs of the child or spouse
• Whether the will imposes unduly restrictive conditions on a gift to the child or spouse
• Whether the child or spouse is being maintained by the state

Courts have confirmed that a will-maker can disinherit a child for good cause, ideally as set out in a WESA memorandum prepared along with the will and setting out the will-maker’s reasons.

A “spouse” could include a person legally married to the deceased, but could also include a person who had lived with the deceased in a marriage-like relationship for at least two years, or who had had a child with the deceased. It is possible that there might be more than one “spouse” who has a claim on the estate. Whether a person was a “spouse” and whether the deceased made adequate provision for that person might require legal advice.

A court action to challenge a will under the Wills, Estates and Succession Act must be commenced within 180 days from the date of the grant of probate.

Wills and estates of status Indians are governed by the Indian Act, and are discussed below.

UNDUE INFLUENCE

A will can be challenged if the will-maker made the will under duress or in fear of someone, or if the will-maker was improperly dominated or defrauded by another person.

Under the Wills, Estates and Succession Act, when a relationship existed between the will-maker and another person (often a caregiver), and “where the potential for dependence or domination of the will-maker was present”, a gift made to that person is now presumed invalid. The would-be beneficiary must prove that he or she did not improperly influence the will-maker.

CHALLENGING THE WILL

There are two common ways of challenging the validity of a will:

• if the testator lacked testamentary capacity when the will was made, and
• if the will was made under suspicious circumstances.

Testamentary capacity includes properly understanding the act and implications of making the will, being free of mental disorder, and exercising genuine free choice. If the will is rational on its face, it is presumed that the testator was capable at the time when it was made. A person claiming that the will-maker did not have capacity must prove that there was incapacity, on the balance of probabilities – a civil standard of proof. Wills made by children might raise capacity issues: an individual under 16 years of age can only make a valid will if he or she is on active service in the armed forces.

A person claiming that a will was made under suspicious circumstances must show good reason to suppose that the will does not accurately express the will-maker’s intention. Once that suspicion is established, the burden shifts to the person supporting (or “propounding”) the will to prove that the testator knew what he or she was doing in making the will, and fully approved of the will as it stands.