Valid or not valid? A will challenge is an all-or-nothing effort to disprove that a will meets all of the requirements discussed in this article. If even one piece is missing, the will is not valid, and either a prior will takes centre stage or intestacy rules to apply. The following explains what makes a will valid.

Why Would Someone Challenge a Will?

If someone stood to inherit under a prior will or through intestacy but does not inherit under a newer will, that person has an interest in bringing a will challenge. The same interest applies to someone whose inheritance shrinks but is not eliminated by a new will. More under a prior will or intestacy is better than less under a new will.

The following diagrams illustrate how invalidating a will can change what the beneficiaries of a deceased with no spouse or dependants and only two surviving adult children (one son and one daughter) would inherit. In this example, a will signed in 2018 provides 25% of the estate’s assets net liabilities to the son, with the residue to the daughter. In a 2005 will, the son gets 75% with the residue to the daughter. In intestacy, the son and daughter would inherit equally. The bolded text represents the outcome and strikethrough text represents an invalidated will.

If the 2018 will is valid:

This situation is clearly more advantageous to the daughter. Typically, new wills revoke all prior wills, so the 2005 will is revoked by the 2018 will.  Since the 2018 will is valid, intestacy rules are not triggered.

If the 2018 will is invalid and the 2005 will is valid:

This situation is preferable to the son, who now inherits more than his sister. If the estate is worth $500,000 after expenses and taxes, the difference is worth $250,000.

If none of the wills are valid:

If none of the wills are valid, the intestacy rules apply and the son and daughter inherit equally.

What Makes a Will Valid?

1. Due Execution: This means that the will was properly signed and witnessed. The will must have been signed by the testator (person making the will) in front of at least two witnesses who also sign the will. Handwritten wills, known as holograph wills, have different requirements. If a will is not properly signed or witnessed, this can be the most effective way to challenge a will.
2. Testamentary Capacity: In order to make a valid will, a testator must be of sound mind, memory, and understanding when he or she signed the will. A person who is not as sharp as they used to be might still have enough appreciation of their assets and actions to make a will. Unfortunately, disputes over whether someone had capacity to make a will usually arise after a testator has died. Medical records and witness accounts with respect to the time the will was made will help determine whether the testator had capacity.
3. Knowledge and Approval/Suspicious Circumstances: A testator must have had knowledge of the provisions of the will and approved it. Where there are suspicious circumstances, the court will place a higher burden on the people propounding (trying to prove) the will to show that there was knowledge and approval. The court will consider several factors in identifying suspicious circumstances, including:
   • how physically and mentally impaired the testator was when the will was signed;
   • whether the new will was significantly changed as compared to a prior will;
   • whether the will generally seems to make sense;
   • the circumstances surrounding the making of the will; and
   • whether a beneficiary was involved in the preparation of the will.
4. No Undue Influence: Undue influence means more than just persuasion, but it is not necessary to show physical violence, confinement, or threat. The court will look for coercion. For undue influence to be found, the testator may have thought “this is not what I want, but I must do it”.
5. No Fraud: If a court finds that a signature was forged on a will, the will is invalid. A court will look at the surrounding circumstances to determine whether a signature was forged, including whether a testator’s signature matches other signatures made by the testator around the same time. A court will not accept a false will.

There is certainly overlap between Knowledge and Approval, Testamentary Capacity, and Undue Influence. For example, if a testator who relies on her son for care because of cognitive and physical decline is pressured by that son to sign a confusing will, this may trigger all three factors. Typically, all three issues are raised in a will challenge.

Who has to prove a will?

Due Execution, Testamentary Capacity, and Knowledge and Approval have to be proven by the person propounding the will. If a challenger wants to argue undue influence or fraud, they have to prove it.

The Standard of Proof:

The standard of proof for each of the above factors is the balance of probabilities, meaning “more likely than not”.

Helpful Vocabulary

Beneficiary: Anyone named in a will to receive part of the estate.
Intestate/intestacy: When someone dies without a valid will.
Propound: To try to prove a will.
Testator: The writer of the will.