- Capacity is presumed when a will is duly executed, but suspicious circumstances can shift the burden to the person propounding the will.
- Undue influence and fraud must be proven by the person attacking the will.
- A will that seems unfair is not necessarily invalid, and dependants may have separate claims under The Dependants' Relief Act, 1996.
Finding out that a family member left you less than you expected, or nothing at all, is painful. Many people ask whether they can contest the will. The answer depends on why you think the will is wrong, and on whether you have a legal basis to challenge it.
This article explains the main grounds people raise in Saskatchewan, who may have a claim, and what else may be available if the will is valid but unfair. Time limits can apply, so speak to a lawyer early.
This article covers the law of Saskatchewan.
Invalid versus unfair
Two different questions often get mixed up. The first is whether the will is valid at all. The second is whether a valid will left someone without enough. Courts treat them differently. Feeling that a will is unfair is not the same as having a legal ground, such as those below, to challenge it, and a lawyer can help you tell which situation you are in.
Some people have separate rights even when the will is valid. Dependants include a legal, common-law or same-sex spouse, children under 18, and adult children unable to support themselves due to disability, and they may claim under The Dependants' Relief Act, 1996 where the will makes inadequate provision.
The main grounds for challenging a will
| Ground | What it means in plain words | Who must prove it |
|---|---|---|
| Lack of capacity | The person did not understand what they were signing or what they owned | Where the will is duly executed, capacity is presumed, so the challenger starts at a disadvantage |
| Suspicious circumstances | Facts about how the will came to be made that raise doubt; what counts depends on the case, so it is worth confirming with a lawyer | If shown, the burden shifts to the person propounding the will |
| Undue influence | Pressure that overpowered the person's own wishes | The person attacking the will |
| Fraud | The person was tricked about what the document was or said | The person attacking the will |
| Improper signing | The will was not signed and witnessed as the law requires | Depends on the facts; the person seeking probate normally files an affidavit of execution |
Testamentary capacity is a legal test decided by a court or lawyer, not by any single doctor or assessor. Medical records and witness evidence are often important.
Who can raise a challenge and how it starts
Whether you are in a position to challenge a will depends on your connection to the estate and on the facts, such as how the estate would pass if there were no will. Without a will, a spouse inherits the entire estate if all the children are also the spouse's, with different shares if there are children from another relationship. A spouse who had lived separate and apart from the deceased for two years takes no share on intestacy. Whether you have standing in your own case is a question for a lawyer.
Saskatchewan courts allow a will to be proven in solemn form (Rule 16-48) and a caveat to be filed. How a caveat works in practice, and whether it suits your situation, depends on the facts, so it is worth raising with a lawyer early. You can also find out whether an estate application has been filed by requesting a search of the Wills and Estates Registry in Regina, which costs $20 and lists estate applications filed since 1905, though only estates that went through court.
Other claims that work alongside or instead
- Dependants' relief: available to eligible dependants where the will makes inadequate provision.
- Family property: a surviving spouse may apply for division of family property. Under s. 30(2) of The Family Property Act, no application may be commenced more than six months after the grant of probate or administration, and spouses who signed a valid waiver cannot apply.
- Delayed distribution: distribution may be delayed six months after Letters are obtained where a dependant may claim or a spouse may apply for division of family property.
Because deadlines can be short, do not wait to see what the executor does before getting advice.
What to do next
- Write down why you think the will is invalid or unfair, with dates and names.
- Collect documents you already have: any earlier wills, notes or letters about the person's health at the time, and messages that show the circumstances. What other records you can obtain depends on your situation, so it is worth confirming with a lawyer.
- List people who witnessed the will or knew the person at the time.
- Check whether a grant has already been issued, since that starts certain time limits.
- See a lawyer promptly to discuss your standing, the evidence and the cost of going to court.
Frequently asked questions
Can I contest a will just because it is unfair?
An unfair will and an invalid will are different questions, and the answer depends on the facts, so it is worth confirming with a lawyer. Separately, eligible dependants may claim under The Dependants' Relief Act, 1996 where the will makes inadequate provision.
Is it easy to prove someone lacked capacity?
It is difficult. Where a will is duly executed, capacity is presumed. Suspicious circumstances can shift the burden to the person propounding the will.
Who has to prove undue influence or fraud?
Those attacking the will bear the burden for both undue influence and fraud.
Is there a deadline?
Yes, in some situations. A surviving spouse's family property application cannot be started more than six months after the grant of probate or administration. Other time limits depend on the claim, so speak with a lawyer quickly.
Sources
- Government of Saskatchewan – When the deceased has a last will and testament — saskatchewan.ca
- Court of King's Bench – Wills & Estates — sasklawcourts.ca
- Court of King's Bench – Probating an Estate — sasklawcourts.ca
- Government of Saskatchewan – Beneficiaries — saskatchewan.ca
- The Family Property Act, SS 1997 c F-6.3 (as summarized in search; verify s. 30(2)) — publications.saskatchewan.ca
- Law Society of Saskatchewan – Case Mail v. 23 no. 19 — lawsociety.sk.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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