How do you challenge the validity of a Will in Manitoba?

by Kathleen Coutts

After a person’s death, their estate can usually be administered without much contention on the basis of the Will, and by seeking a Grant of Probate from the Court.

However, in some instances a person may wish to formally challenge the validity of the Will left by the deceased and contest how the estate is being handled. The usual process for challenging the validity of a Will in Manitoba starts with the filing of a Notice of Application in the Court of Queen’s Bench along with supporting Affidavits (i.e. a sworn written document for Court setting out the evidence of what occurred).

There are four typical legal grounds on which the validity of a Will is often challenged in Manitoba:

    a) That the individual lacked capacity to make a valid Will;

    b) That the individual lacked knowledge and approval of the contents of
         the Will or the nature and magnitude of their assets;

    c) That the individual had been a victim of undue influence;

    d) That there has been fraud.

Each of those typical grounds will be discussed in more detail below.

a) Capacity to Make a Will

It must be shown that the testator (the person who signed the Will) had capacity to make a Will. In order to have capacity, a testator must understand the nature of what she is doing (ie: giving, or not giving, property to others), understand the scope and extent of her assets (what her “property” includes), understand the people that she might be expected to benefit with her Will, and must not have a “disorder of the mind”. Lack of capacity cannot be simply forgetfulness or mistake, and age alone does not disqualify someone from having capacity. The relevant time to question a testator’s capacity is at the time she made the document in question.

b) Knowledge and approval of the Will

The testator must have known about the Will and approved its contents. The testator cannot be ignorant of the contents of the Will and she cannot be unaware of the effects of the Will. However, the Courts have found the fact that that the testator executed the Will with the proper requisite formalities, such as the Will being properly witnessed and with the accompanying affidavit of execution, is prima facie evidence that that the individual did have knowledge and approval of the Will.

c) Undue Influence

Undue influence is influence exerted by someone on the testator which can be described as having caused the testator to execute a piece of paper pretending to express her mind but which really does not. Put another way, the testator would say “this is not my wish but I must do it”. There must be some element of coercion capable of destroying a testator’s free will. It is the party that is alleging undue influence that must prove that it has occurred, as it will not be automatically presumed by the Court. The Courts have outlined a number of “suspicious circumstances” which will be considered when determining whether there has been undue influence including: the influencer made the appointment with the lawyer for the testator, the lawyer who made the Will was the influencer’s lawyer, the influencer was present at the appointment with the lawyer, the influencer interpreted or communicated the testator’s wishes to the lawyer, the influencer gave the instructions to the lawyer to prepare the Will, and the Will favoured the influencer over other people of the same class.

d) Fraud

It is very rare that fraud is claimed with respect to a Will, and fraud can be very difficult to prove in a Court. Fraud would arise when there had been a false representation made to mislead the testator, negatively affecting the drafting of the Will. Estate litigation involving the challenging of a Will can be a complex area of the law and can very much depend on the specific facts and circumstances concerning the Will and the estate itself. We would recommend seeking out legal advice if you are contemplating such a challenge or are required to respond to such a challenge. The Estate Litigation practice group at Tapper Cuddy LLP can assist with advice on such matters.