Challenging a will

In most cases, Alberta law recognizes the principle of testamentary freedom, which is the idea that a person doing a will should be able to leave their estate to anyone they want, and that such a person should also be able to exclude from their will anyone that they want. However,

the principle of testamentary freedom isn’t absolute and there are a few different ways that a will can be challenged.


Failure to recognize property entitlements

You can only will to others what you own. That may seem like an obvious statement, but failure to abide by that principle is a common mistake. For example, a spouse may have a matrimonial property entitlement to half of a testator’s (will writer’s) assets. If a will doesn’t recognize the matrimonial property entitlements of a surviving spouse, it may be challenged.


Also, if property is held jointly with another person, you can’t just will “your share” of the property in question to a third party. With joint ownership, there’s a right of survivorship which attaches to the person who outlives the other joint owner. The survivor automatically (with few exceptions) becomes the sole owner of the property upon the death of the other joint owner.


Another example of people running afoul of this rule is when corporate assets are incorrectly dealt with in wills. If an asset is owned by a corporation (for example, a family farm), but an individual who has shares in that corporation attempts to dispose of that asset (the farm, not the shares) directly through their will, then a court will consider that part of the will to be invalid.


Failure to support spouses, common law partners, or dependent children

In Alberta, a will can be challenged if it doesn’t provide adequate support for a surviving spouse or adult interdependent partner (common law partner) or if it doesn’t provide adequately for dependent children. In some cases, dependent grandchildren may even be entitled to support.


Undue influence

If a testator was under undue influence at the time they did a will, the will may be challenged on that basis. For example, if an elderly parent is coerced into making certain gifts to certain children, the resulting will may be challenged if there is sufficient evidence of coercion.


Lack of capacity

A person doing a will must have a certain degree of mental competence. If there is reason to believe that a will had been done while a person lacked capacity, the will can be challenged on that basis. In some cases, undue influence and lack of capacity go hand in hand.


Failure to meet formal requirements and problems of interpretation

Sometimes, a will can be challenged because it doesn’t comply with certain formal requirements. Also, if there are different interpretations for a provision in a will, it’s possible that this could lead to a legal challenge of the will.


Weninger Zhang

an Association of Independent Law Practices

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