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One of the very common estate law disputes that occurs is when the beneficiaries of the estate challenge the validity of the will. The beneficiaries may be tempted to challenge the will for a variety of reasons. For instance; they feel that distribution of the assets in the will is done incorrectly or they might believe that the testator is incapable in terms of making of will or limiting their interest in the will, and so on.

Contesting A Will? Here’s What You Need To Know

Estate disputes between testator and beneficiaries are quite common. If you are thinking to contest a will, then you need to rethink because contesting a will means encountering simultaneous legal battles which comes with a lot of costs.

A will once made can be modified by the testator who is the maker of the will. It is essential that the testator is mentally sane and capable of making the will.

More commonly, the challenges on the validity of a will are brought after the death of the testator but oftentimes the beneficiaries are tempered to bring claims against the will prepared by the living testator. This essentially means when the testator is alive, you need stronger evidence to support your claim against the testator.

In today’s blog article, the case of Palichuk v. Palichuk is discussed which stresses upon the importance of testamentary freedom especially when the testator is alive.

Testamentary Freedom Of Testator

In Palichuk v. Palichuk, it was ruled that no interference should be made with the testamentary freedom of the testator when he/she is alive and capable. Simply, testamentary freedom refers to an individual’s right to distribute their estate as they see fit through a valid will.

In Palichuk, Nina Palichuk is the testator of the will and has two daughters namely Linda and Susan. Nina is a widow and has just entered in her 90s. Her residential home in Acton, Ontario, is approximately a two-acre property. When Nina’s husband died in 2015, Susan started living with Nina soon after her retirement in 2016.

Then, in 2016, Nina made a will and made both her daughters as attorneys for the assets’ management and care. Linda was also declared as the joint account holder to Nina’s investment account.

In 2019, Nina stopped living in her home in Acton and shifted to assisted living retirement home. During this course of time, the relationship of Nina and Linda crumbled. As a result, Nina disinherited Linda from her will in 2020. Also, now the only trustee of the house in Acton was Susan.

Factors Relevant To Preserve The Testamentary Freedom Of Testator

Linda after knowing about her disinheritance, she filed an application against her Mother. She claimed that her mother is incapable and challenged the validity of the modified will (modified in 2020). Not only this, she contested that her removal from the will is done on account of undue influence by Linda’s sister, Susan.

Testamentary Capacity Of The Testator

After Linda’s application, the very first thing that was done was the capacity assessment of Nina. Nina cleared the capacity assessment test which alludes that she is capable enough to make decisions in terms of the will.

In Palichuk, the Ontario Superior Court of Justice reiterated the significance of testamentary freedom in the disputes between the testator and beneficiaries. Since, Nina was fully capable of making changes to will therefore, her testamentary decisions had tantamount importance.

The application of Linda was turned down and the claim of Nina to be removed from the title of joint account holder from the investment account to which Linda throughout resisted, was finally sustained. Not only this, due to Linda’s unsuccessful and baseless application, she was also directed to pay an amount of $100,000 to Nina and Susan.

Validity Of The Will

The court went on to rule that there was no point in examining the validity of the modified 2020 will because Nina’s capacity with regards to the changing of the will was already being proved.

The court also took support of Substitute Decisions Act in order to reinstate that a person is allowed to make changes as per his/her wish as long as the he/she has the capacity to do so. Conclusively, the court declared Linda’s application as a wasteful exercise of court’s resources and time.

Soon after the decision of ONSC, Linda appealed which was dismissed as well. The appeal was dismissed on the grounds that Nina was alive and was capable of making alterations and that the execution of a comes into effect after the death of the testator by virtue of section 22 of the Succession Law Reform Act.

Therefore, the decision of ONSC was restored for the purposes of preservation of autonomy of a testator for making decisions while they retain the testamentary capacity to make, alter, or choose beneficiaries for her will.

The Bottom Line!

There are some restrictions on testamentary freedom in Ontario. For example, a will is called invalid if it is found to have been executed under duress or undue influence, or if the testator lacked the mental capacity to understand the nature and consequences of their actions when making the will. Additionally, certain family members may have the right to challenge a will if they believe they have not been adequately provided for.

However, if the will is declared invalid, then the estate will be distributed in line with the rules of intestacy, which provide for the assets’ distribution to the deceased’s surviving family members in a prescribed order of priority.

We Can Guide You!

Estate law in Ontario can be complex. If you require legal assistance for creating or contesting a will, get in touch with estate lawyers at Ayaz Mehdi Professional Corporation.

Disclaimer: Kindly note that sending or receiving information through this site does not establish a solicitor-client relationship. Legal matters are fact-specific, and the law is variably changing. The views expressed and the content provided on this blog are general guidelines and cannot substitute for proper legal advice. Schedule your legal consultation by clicking here: Let’s meet!

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