Estate Law

Will Challenges / Disputes

In Alberta, there are limited ways in which a Will can be challenged. Claiming that a testator did not have the mental capacity to execute a Will is one of the ways. 

Another possible way to challenge a Will is to claim that a person was exerting undue influence over the testator and therefore the content of the Will is not a true reflection of the testator’s intentions. The burden to prove these circumstances exist initially lies with the claimant and can be difficult. Capacity of a person is assumed until evidence to the contrary is presented and accepted by the Court.

If successful, the Personal Representative may have to formally prove the Will. In order to formally prove a Will, the propounder of the Will (the Personal Representative) must provide evidence in support of finding the Will is valid, the testator was competent to sign it and signed it independently of anyone who might influence the terms of the Will.

Successful challenges may result in a declaration that the Will, or portions of it, is invalid. This may result in previously executed Wills being declared as the Last Will of the testator or a declaration that the testator died without a Will and the rules of intestacy apply.

Applications for formal proof of will can be very complex, require substantial evidence and possibly witnesses, namely the person or lawyer who prepared the Will. There may also be medical evidence required.

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