Are you looking for a lawyer who can help you with contesting a will no win no-fee? Most lawyers need a retainer of at least $5000 to work on an estate dispute. It might be challenging for you to find a lawyer on contingency.

However, if you are owed $100,000 is it worth spending over $10,000 on legal fees? If you have a big case and need a contingency lawyer, you can contact us below. We will try our best to connect you with the right lawyer.

Here is a situation that applies to contesting a will…You have control over your assets and belongings. For example, if you own a house you decide who lives in it. When you sell your home, you decide on the new purchaser.

This form of freedom—freedom to do what you want with your items as you see fit—is extended beyond death in the form of a Will. Legally this is called “Testamentary Freedom“.

However, what if a Will is unclear? Or, what if the Will seems to run contrary to intentions that the Testator made clear while she or he was alive? What options are available to those left behind who are not mentioned in the Will of a loved one? These are some of the questions asked of estate lawyers and litigators.

No Win No Fee Will Disputes

When a person feels that she or he did not receive entitlements that should have been owed to him or her under a Will, the person may consider contesting the Will.

Put another way, if a person feels she or he should have received something from a deceased person’s estate, that person may want to consider whether there are sufficient grounds to dispute a Will and assert a claim.

There are only so many ways a person can validly contest a Will. Generally accepted grounds for setting aside a Will are:

1. “Undue Execution”: Or, in other words, non-compliance with a technical legal requirement.

2. “Lack of testamentary capacity”.

3. “Undue Influence” and suspicious circumstances.

4. “Fraud and/or Forgery“.

Due Execution or Compliance With Statutory Requirements

In Ontario, the rules of Will execution are found in the Succession Law Reform Act and must be strictly complied with, as follows the will must be:

• in writing (so, a video-recorded Will on your iPhone is invalid)
• signed by the testator at the end after it has been completed
• signed in the presence of two or more witnesses present at the same time, both of whom must sign the Will in the presence of the testator; and
• witnesses and their spouses cannot be beneficiaries under the Will.

Holograph Wills

There is a difference between a regular Will and a Holograph Will. A Holograph Will is a valid Will which is:

1. wholly in the testator’s handwriting;

2. is signed; and

3. does not require the presence or signature of a witness.

Contesting A Wil- No Win No Fee

Holograph Wills remains in use today.

So perhaps as you’re sitting here today, you may want to draft your handwritten will. Or, you may choose to listen to the rest of my presentation.

Your choice, of course. If someone wants to claim that a Will is invalid because it was not executed properly, the onus of proof is on the propounder of the Will. Put another way, you will have to prove that the Will is valid: the challenger does not bear the burden of proof.

A Lack of Testamentary Capacity

A person must be of sound mind, memory, and understanding on the day the Will is executed to be able to make a valid Will. When a Will is contested on the grounds of mental incapacity, the Propounder of the will must prove on a balance of probabilities (which means that it is more likely than not) that the Testator understood what she or he was doing.

The testator must be able to:

• understand the nature and effect of a Will;
• comprehend and recollect what property she or he possessed that is being given under the Will;
• know the people that ordinarily might be expected to benefit under the Will;
• understand the extent of what is being given to each beneficiary;
• know the persons who might have a claim and why they are being excluded; and
• have the capacity to give instructions.

Interestingly enough, a person may still be able to make a valid ill after having been declared incapable of managing his or her affairs. So, one might not be able to prudently manage his or her investments but still have the requisite capacity to create a Will.

Will Challenge Based on Lack of Capacity

Regardless of whether or not you are the one contesting a Will or the propounder of a Will if capacity is a seeming concern you will probably want to obtain medical evidence. If you or a relative wants evidence to prove sufficient capacity at the time a Will is made, obtain a capacity assessment report.

You would hire a “capacity assessor” to do so. If you are looking to challenge a Will on the grounds of lack of testamentary capacity, substantial and persuasive medical evidence must be obtained.

Evidentiary requirements would also include contacting witnesses as to facts, such as neighbours and friends, to substantiate the medical evidence of lack of capacity. In some instances, the services of an expert medical witness will be engaged to give a “retrospective opinion” on capacity after death.

This is less useful than a medical witness who actually knew the testator. The expert witness will review the medical data compiled from various sources and consider the observations of witnesses.

The expert witness will also consider relevant medical records and lawyer’s notes from the date of the instructions for and execution of the will.

No Win No Fee Solutions

Undue influence is found where the Will reflects the intentions/interests of another person and not the intentions of the testator. A key indicator is a power imbalance between the influencer and the testator.

An EXAMPLE would be when the testator is coerced into signing a Will benefiting the person exerting the power. Undue influence is particularly an issue in the case of elderly or vulnerable individuals, as those people are most susceptible to pressure exerted on them by relatives, friends, or acquaintances.

The person challenging the Will carries the burden of proof. The challenger must show on a balance of probabilities that the mind of the testator was overcome by the influence exerted by another person. Therefore, there was no voluntary approval of the contents of the Will.

Coercion in essence must be proven. In practice, it is usually very difficult to prove undue influence.

The Presence of Suspicious Circumstances

Suspicious circumstances may be raised by circumstances:

• surrounding the preparation of the will;
• tending to call into question the capacity of the testator; or
• tending to show that the free will of the testator was overcome by acts of coercion or fraud.

Is it possible to leave adult children out of your will because you disagree with their choice of partner? Can you change a bad will?

The Ontario Court of Appeal (ONCA) says so.

When a grandfather discriminated against his daughter because of her child’s race, the Superior Court of Justice ruled his will offended Ontario’s public policy on racial equity.

But on March 8, 2019, ONCA overturned the decision, sending a clear message to wills and estates lawyers about testamentary capacity.

Rector Emanuel (Eric) Spence, a Jamaican who died in 2013, wrote daughter Verolin out of his will and omitted grandson A.S. altogether. Verolin is now 52 and A.S. is close to 13.

She lived with her father after her parents separated and followed him to Canada a few years after he emigrated in 1979. A.S. never met his grandfather. Verolin’s sister, Donna, 51, stayed with her mother in England and still lives there.

Should You Change A Bad Will?

Eric’s will, written in 2010, explicitly stated Verolin was to be left nothing “as she has had no communication with me for several years and has shown no interest in me as her father” (para 10). His estate was left to Donna, her sons and the residual bequest (anything left over) to a cousin.

Verolin contradicted the statement. In an affidavit supported by Eric’s occasional caregiver, she alleged her father told her he was ashamed her partner was white. Verolin retorted that her father “…made it very clear to me that he would not allow a “white man’s child” in his house” (para 14).

The caregiver’s affidavit attested that Verolin and A.S. were deliberately and clearly excluded “because he wanted to discriminate against Verolin because the father of her son was a white man” (para 15). Although Verolin stated an earlier will leave her Eric’s home, the 2010 version revoked all earlier wills.

No win no fee attorneys are hard to find. We can try and connect you with one.

Bad Will – Extrinsic Evidence

In reviewing the will, the Superior Court of Justice ruled that, on the face of it, there were no public policy implications. However, the extrinsic evidence (the affidavits) made it clear Verolin had been disinherited for racist reasons that offended “not only human sensibilities but public policy” (para 19).

Due to the discrimination, which was “clear” and “unchallenged”, the judge ruled the will should be set aside and the estate shared equally by the sisters.

Eric’s executor, BMO Trust, appealed the decision about the “bad will.” ONCA was asked to determine if the extrinsic evidence was admissible if the judge erred in assessing it and improperly interfered with Eric’s testamentary freedom and whether the judge should have set aside the entire will or just the residual bequest.

Change A Bad Will– Estate Disputes Are Complex

ONCA found the right to dispose of your possessions as you see fit is deeply entrenched in the common law. Ontario law excludes testators (the person who wills the property) from any obligations to independent adult children. Although the courts recognize adequate, just and equitable provisions must be made for a surviving spouse and children.

The court acknowledged some wills do include provisions, such as requiring a beneficiary to change religions, contrary to public policy. Eric’s will didn’t state Verolin and A.S. were excluded due to race.

Therefore, the Canadian Charter of Rights and Freedoms and the Human Rights Code didn’t apply. ONCA allowed the appeal. They upheld his right to freely choose and disallowed admission of extrinsic evidence.

They allow him to establish a will’s intent or question bequests.

Halsbury’s Laws of England (1914) observes:

“Eccentricity alone does not prevent a man from disposing of his property by will.”

We hope you found this article on No Win No Fee solutions useful.