Estate Litigation

Has a loved one passed and you want to contest the Will? Or are you the executor of an Estate that is being contested? We have all the information you need about:

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• registering caveats on probate applications; 

• contesting wills based on incapacity, undue influence, contrary intention and mistake;

• dependents relief applications; 

• applications under the Matrimonial Property Act;

• defending contested estates; and

• settlement negotiations

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Here are answers to some of our most frequently asked questions about Estate Litigation:

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QUESTION: HOW EASY IS IT TO CHALLENGE A WILL? 

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ANSWER: 

It depends. Courts generally uphold the writer's wishes, but wills can be challenged for lack of capacity, undue influence, spousal or child support, mistake and contrary intention. 

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QUESTION: HOW DO I CHALLENGE A WILL BASED ON LACK OF CAPACITY? 

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ANSWER: 

In order to challenge capacity of the will maker, one must prove that the testator did not understand

1. the nature and extent of their property or net worth; 2. the members of their family; 3 that they were making a will; and 4. the nature of the disposition of assets.  

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QUESTION: CAN I MAKE A CLAIM AGAINST MY DECEASED SPOUSE'S ESTATE EVEN IF WE HAVE A PRENUPTIAL AGREEMENT THAT STATES WE CAN'T? 

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ANSWER: 

Yes. Parties can't contract out of the Wills and Succession Act. Everyone has a duty to provide for their dependants. 

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QUESTION: HOW DO I CHALLENGE A WILL BASED ON UNDUE INFLUENCE? 

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ANSWER: 

In order to be successful, you need to prove 1. Motive of undue influence; 2. Opportunity; 3. Resulting benefit under the will; and 4. Positive proof of coercion. 

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