Think about challenging the will

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What can I do if someone died and I don't agree with what I'm getting from the estate?
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Think about challenging the will

If a court decides the will isn't valid, then the estate will be distributed based on the intestacy rules.

How you decide to challenge a will depends on the situation. If the will is very different from an earlier will that the person made, you may want to look at what was happening when they signed it.

Here are some of the main reasons a court might decide a will isn't valid.

Person didn't have mental capacity

A will might not be valid if you can show that the person was not mentally capable of understanding what making a will means. For example, the person didn't understand:

  • that they were writing and signing their will
  • what property they had
  • what type of relationships they had with people named in the will

Too much pressure

A will might not be valid if you can show the person signed it because of too much pressure from a family member or some other person. For example, if they were forced to sign the will or to give a bigger share of their estate to one person instead of another. This is sometimes called "undue influence".

Will does not follow rules

A will might not be valid if the person who made it did not follow the rules for making a will. For example, a formal will is not valid unless all of the following is true:

  • The will is signed in front of 2 witnesses.
  • Each witness signed the will in front of the person who made the will and the other witness.
  • Neither of the witnesses is named in the will as a beneficiary.
  • One of the witnesses signed an affidavit of execution confirming that the person who made the will signed it in front of both of the witnesses, who also signed the will.

Person was tricked

A will might not be valid if you can show that someone tricked or misled the person into leaving money or property to them or someone else. For example, they might do this by giving the person information that wasn't true, or showing them fake documents or documents with forged signatures.

Wording not clear

You might want to ask a court to decide what a will means if:

  • the wording in the will isn't clear, or
  • you think that the estate trustee doesn't understand the will correctly

Get legal help

Challenging a will can cost a lot of money and take a lot of time. And you have to go to court to do it. A lawyer can tell you if they think your claim would be successful and help you through the process. If you start a claim and it isn't successful, the judge could say that you have to pay some or all of the estate's legal costs.

Reviewed: October 31, 2019

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