Valid Grounds to Challenge a Will in Manitoba

You have read a will, or been told what it says, and something feels wrong. Maybe a sibling received most of the estate, maybe the signature looks odd, or maybe the person who died was unwell when the will was made. Before you spend money or damage family relationships, it helps to know which reasons a Manitoba court actually looks at.

This article explains the main grounds people raise, what the legislation says about each one, and how a dispute begins. It is general information, not advice on your situation. Challenges depend heavily on evidence, so a lawyer can tell you how your facts line up.

This article covers the law of Manitoba.

Validity is different from fairness

A challenge asks whether the document is a valid will. It is not a general review of whether the person who died was kind, even-handed or sensible in how they divided their property. A will can feel deeply unfair to you and still have been properly made.

If your real concern is that you were financially supported by the person who died and were left too little, there is a separate route. Under The Dependants Relief Act, a court may order reasonable provision from the estate for a dependant in financial need, even despite the will. That claim is about need, not about proving the will invalid.

Problems with signing and witnessing

Under The Wills Act, a will must be in writing and signed at its end by the person making it, or by someone else in their presence and at their direction. That person must sign or acknowledge the signature before two or more witnesses present at the same time, and the witnesses must sign in the person's presence. Failing to meet these formalities is a ground for challenging a will.

There are exceptions, so a missing witness does not always end the matter:

• A will wholly in the person's own handwriting and signed at its end is valid without witnesses.
• Members of the armed forces on active service and mariners at sea can make a will by signed writing without witnesses.
• Authorized persons may witness remotely under the regulation, and the will must contain any wording the regulations require.
• The court can give effect to a document that does not meet the formalities if satisfied it shows the person's testamentary intentions.

A gift to a witness, or to the witness's spouse or common-law partner, is void as to that person only. It is saved if at least two other non-interested witnesses attest, or if the court validates it and finds no undue influence.

Capacity and undue influence

To grant probate, the judge must be satisfied that the will is valid and properly executed, including that the person appeared to be of sound mind and of age. The caveat form used in Manitoba lets the person filing state the reason for the objection, such as lack of testamentary capacity or undue influence.

What a person must prove for these grounds, and who carries the burden, is worked out in court decisions rather than a simple list in the legislation. That is one reason these cases turn on evidence such as medical records, the circumstances of the signing, and the evidence of witnesses. A lawyer can explain how courts approach them.

Revoked wills, later wills and life changes

Sometimes the argument is not that the will was badly made, but that it no longer applies. A will is revoked by a later valid will, a later revoking writing made with the formalities, destruction with intent to revoke, or the maker's marriage.

• Marriage revokes a will unless the will declares it was made in contemplation of that marriage, or of a common-law relationship with the person later married. Other exceptions exist.
• On divorce or the end of a common-law relationship, gifts and appointments to the former spouse or partner are revoked and the will is read as if that person had died first, unless the will shows a contrary intention.

How a dispute starts and what to do next

A caveat may be filed against a grant of probate or letters of administration, or against other proceedings in an estate. It is filed with the registrar or a deputy registrar on Form 75A. Unless the court orders otherwise, no grant issues until the application has been returned with the registrar's certificate that no other application exists, which is how a caveat holds up a grant. How long a caveat lasts and when it can no longer be filed are details to confirm with a lawyer.

If the matter becomes contested, a judge may add or remove parties and give directions, including ordering a pre-trial conference, after which the application is treated as an action. While a suit over a will's validity is pending, the court may appoint an administrator who cannot distribute the estate and acts under the court's direction.

• Get a copy of the will and any earlier wills you know about.
• Write down dates, who was present at signing, and any health concerns.
• Collect medical and financial records you can lawfully access.
• Do not wait: time limits can apply, and a lawyer can confirm which ones fit your case.
• Ask about a Dependants Relief Act claim if you relied on the person for support.

Frequently asked questions