Jay Matheson, Litigation Department
Challenging or contesting a Will can be done a few different ways in Nova Scotia.
Challenging a Will’s Validity
A Will may not be valid where it fails to meet the standard requirements set out under Nova Scotia law:
- the Will must have been made by the deceased at the time when he or she was the age of majority unless he or she was married; and
- although there are some exceptions, a Will must be in writing, signed by the deceased at the end of the document and must be witnessed by two adult witnesses who are not beneficiaries or married to beneficiaries.
Besides situations of fraud or forgery, some other examples of when a Will might be contested for validity are where:
- the Will appears to have been altered after being signed;
- there are multiple Wills;
- the deceased was married after signing the Will;
- the deceased was divorced after signing the Will;
- the deceased expressed a clear intention that the Will was revoked;
- there are concerns that the deceased did not understand the Will;
- there are concerns that the deceased was not mentally competent to sign the Will; or
- there are concerns that the deceased was subject to undue influence to sign the Will.
Varying a Valid Will
Not well known is a Nova Scotia law that allows even valid Wills to be varied. Under this law, a child (even an adult child), widow or widower of the deceased person can apply to the Court to vary the Will when they have not been adequately provided for.
Some common examples of when this law might result in varying a Will are as follows:
- where children (even adult children) are disinherited from a parent’s Will;
- where children receive different amounts under the parent’s Will; and
- where a surviving spouse receives an unequal share compared to others.
To vary a valid Will, you need to make an application within six months of the Will having been probated. Every situation is unique and involves the Court’s consideration of all relevant evidence, such as family history and relationships.
Having a Will in the first place is important. Ensuring that the Will reflects your wishes and is valid gives some peace of mind but challenges are still possible. Even if a challenge is completely baseless, the legal costs to defend the Will and the accompanying emotional stress on all participants can be substantial.
You should understand that there are additional Estate planning methods which can be used to avoid and discourage challenges to a person’s final wishes. These methods are not typically found or mentioned in online legal will kits.
The important take away is that whether you are making a Will, considering making a challenge to a Will or are a person responsible for an Estate that is under threat, it is important that you receive proper legal advice.
Our firm offers full service to clients surrounding Estate matters, including Estate planning and drafting Wills. As well, we may be able to assist you and advise on contesting and defending Wills. If you have questions or would like to discuss this topic further, please contact our Wills and Estates Department at 1-902-752-8441 or 1-888-752-8441.
*This article is meant to be for information purposes only and is not intended to be legal advice or opinion. If you have any further questions please consult a lawyer. Many of the statements in this blog post are general principles which may vary depending on each person’s case.