Can You Contest a Will in Newfoundland and Labrador?

Being unhappy with a will does not always mean you can change it. The law in Newfoundland and Labrador treats a person's will seriously, but it also gives people ways to raise concerns before a grant is made and, in some cases, to ask for support from the estate.

This article explains the main routes: opposing the grant, questioning whether the will is valid, and making a dependant's claim. It also covers what the court process involves. Because deadlines can be short, it is worth getting legal advice quickly.

This article covers the law of Newfoundland and Labrador.

Two different kinds of challenge

People usually mean one of two things when they ask about contesting a will. The first is arguing that the will itself should not be accepted, for example because it was not properly made. The second is accepting the will but asking the court to provide for a dependant who was left without adequate support.

Opposing the grant: the caveat and solemn form

A person opposing a grant enters a caveat in the registry, using Form 56.04AA. Once a caveat is entered, a grant cannot issue without the caveator being notified and heard. The court may require the parties to appear and plead where a caveat is entered or sufficient objection is made.

The applicant must, within one year of the caveat being entered, start a proceeding to expunge it or, for probate, to prove the will in solemn form. Proving in solemn form means the will must be proved through a court process. The court or a judge may require this where circumstances appear to justify it, and it can be sought on a petition verified by affidavit.

A caveat can delay the estate. The court's own list of delay causes includes a caveat, a requirement for solemn form and paperwork problems. Those who may apply for probate are, in priority, executors, then residuary legatees, then the Crown, subject to the judge's discretion.

Questions about validity

The Wills Act sets out formalities. A will must be in writing and either handwritten and signed by the testator or signed before at least two witnesses. A will made by a person under 17 is invalid. A gift to a witness or the witness's spouse is void only if the will cannot be proved without the witness's evidence.

• Marriage revokes a will, unless the will declares it was made in contemplation of that marriage.
• The Act has no revocation on divorce.
• Audio-visual witnessing counts as being 'in the presence of' only if the witness is a lawyer and the prescribed requirements are met.
• If only one witness is a lawyer, remote attendance does not count for the non-lawyer witness.

Arguments about whether the person understood what they were doing, or was pressured, are fact-heavy. How a court weighs them depends on the evidence, and a lawyer can explain how this works in practice.

Claims by dependants and beneficiaries

Under the Family Relief Act, a dependant, meaning a spouse, cohabiting partner or child, may apply where a will does not make adequate provision for maintenance and support. The application must be made within 6 months after the grant, though a judge may allow it for any undistributed part of the estate. A cohabiting partner needs at least 2 years of continuous conjugal cohabitation outside marriage, or at least 1 year if they are together the parents of a child.

The judge considers factors including conduct, other support, the relationship with the deceased, finances, other dependants' claims, provision made in life and services provided. The court can order provision despite the will, suspend administration and stop distribution once notice is served. An appeal goes to the Court of Appeal within 30 days.

A surviving spouse's Family Law Act rights are in addition to rights under a will, and an application to divide matrimonial assets equally is due within 1 year after the first spouse's death, extendable on reasonable grounds.

If your concern is how the executor is handling the estate, beneficiaries, creditors or sureties can seek an order requiring an inventory and sworn account, and any interested person may apply to remove an executor.

What to do next

• Get a copy of the will and note the date it was made and who witnessed it.
• Write down the dates of the death and any grant, since the deadlines run from those events.
• Check whether an application for a grant has been posted, as a Notice of Application lapses 6 months after posting unless an application is made or a caveat entered.
• Gather evidence about your relationship with the deceased and your financial situation.
• Speak with a lawyer promptly about whether a caveat or a dependant's claim fits your situation.

Frequently asked questions