Pre-death will challenge is premature

In my long career in estates law, I have learned to spot which wills are most likely to end up in court after the testator’s death.  

Wills governing larger value estates are often candidates for future litigation, but the truth is you don’t need to be rich for your death to spark an ugly estate dispute.  

For many people, even a small amount of money trips a switch that robs them of any sense of  reasonableness. In other families, beneficiaries seem to have been spoiling for a fight with each other their whole lives and are simply waiting for their loved one’s death to trigger the inevitable showdown.  

But in a recent case, one Ontario woman was unable to wait that long, attempting to challenge her mother’s will while she was still alive. As part of a broader guardianship application, the woman asked the court to declare her mother incapable and invalidate her 2020 will – which disinherited the daughter – on the basis of her sister’s undue influence. 

However, the Ontario Court of Appeal halted her case, ruling that the determination of a will’s validity depends upon a “future contingency” – also known as the testator’s death. In the process, the unanimous three-judge panel took the chance to quote from a famous 1750 case between two British lords in which the country’s Lord Chancellor compared the will of a living person to “a piece of waste paper.” 

In addition, the court wrote that there were good public policy reasons to back up its decision to bar pre-death will challenges, pointing out that a testator may change their will as often as they like while they are still alive. 

“It is entirely unknown how much, if any, money or property there will be left to dispute until the testator dies. It cannot be known if any of the beneficiaries will have predeceased the testato. Thus, the common law insists upon the death of the testator before litigation,” the decision reads. “Otherwise, the courts would be inundated with litigation that is hypothetical during the lifetime of the testator, with the potential for re-litigation after their death.” 

Unfortunately, it may not always be possible to avoid a clash among your loved ones after (or before) you are gone. But there are steps you can take to minimize the risk. 

For example, you should think hard before cutting out a person who expects to feature in your will, or at least consider giving them some advance warning that they may be getting less than they had hoped. Setting realistic expectations ahead of time is often enough to nip issues in the bud and takes a lot of the heat out of the situation by the time estate administration begins.  

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