{"id":4341,"date":"2020-01-28T14:26:40","date_gmt":"2020-01-28T19:26:40","guid":{"rendered":"https:\/\/www.sabbagh.ca\/articles\/uncategorized\/contesting-a-will-main-points-you-should-know\/"},"modified":"2022-01-10T12:55:55","modified_gmt":"2022-01-10T17:55:55","slug":"contesting-a-will-main-points-you-should-know","status":"publish","type":"post","link":"https:\/\/www.sabbagh.ca\/en\/articles\/civil-law\/estate-law\/contesting-a-will-main-points-you-should-know\/","title":{"rendered":"Contesting a will | Main points you should know"},"content":{"rendered":"

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Contesting a will \u2013 capacity versus incapacity<\/strong><\/h2>\n

Typically, when people think of a family inheritance or anything related to an inheritance people think about last will and testaments and the distribution of an estate. Many people assume that if there is a will in place, then everything will go according to the deceased\u2019s plans. That an executor will execute all of the commands as per the deceased\u2019s wishes in their will.<\/p>\n

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It is less often that someone thinks about the possibility of someone contesting a will<\/em><\/strong>. This article will go over the main points that one should be familiar with if they find themselves asking how to contest a will or how to fight a contested will..<\/p>\n

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What many people don\u2019t typically think about, although should be aware of is when certain \u201ctitled\u201d individuals at the time of an inheritance feel they need to contest the will<\/em><\/strong> for one reason or another.<\/p>\n

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Specifically, some people after learning the details of a deceased\u2019s will often ask themselves how to contest a will<\/em><\/strong> and what are the steps to take when contesting a will.<\/p>\n

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When the wheels are in motion and it is obvious that will litigation will be taking place, whatever the reason, parties involved know that the dispute will be resolved in court, sometimes at the risk\u00a0of\u00a0impairment some family ties.<\/p>\n

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Besides common problems related to a will (its form and structure or lack thereof), there are two main reasons for contesting a will<\/em><\/strong> or litigation of a will: lack of testamentary capacity and indue influence (captation).<\/p>\n

\"incapacity<\/p>\n

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Lack of testamentary capacity<\/strong><\/h2>\n

The Civil\u00a0Code of Quebec<\/em> assumes\u00a0that\u00a0every adult,\u00a0has the capacity to understand and sign a\u00a0will<\/a>.\u00a0This is the basic rule.<\/p>\n

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Disability is the exception to this rule.\u00a0It is the burden or the person who is contesting a will or who alleges the person who wrote a will lacked testamentary capacity to prove their point and make their case. This is typically done in Canada with the legal assistance of an\u00a0estate lawyer<\/em><\/a>.<\/p>\n

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A lack of testamentary capacity<\/em><\/strong> or\u00a0failure<\/em>\u00a0<\/strong>is characterized by an\u00a0altered mental\u00a0<\/strong>or\u00a0physical state<\/strong> of a person where they are no\u00a0longer able to take care of themselves, specifically from a judgement and decision point of view.<\/p>\n

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A judge is ultimately the person who decides whether or not the person who wrote the will or decided what details went into the was of sound mind at the time of the writing of the will. A judge will be the one to determine whether incapacity has been properly demonstrated in court or not.<\/p>\n

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The judge will often asses the testamentary capacity of the person who wrote the will by assessing if the person suffered from any of the following:<\/p>\n