Valid Grounds to Challenge a Will in New Brunswick

Finding out that a parent or relative left you little or nothing is painful, and it is natural to ask whether the will can be set aside. The law does allow a will to be challenged, but only on particular grounds. Feeling that the result is unfair is not one of them.

This article explains the grounds that can actually matter in New Brunswick, who has to prove what, and the complaints that usually do not succeed. It is general information. A lawyer can look at the facts of your situation and the documents.

This article covers the law of New Brunswick.

Complaints that are not enough on their own

Simply being disappointed or excluded is not itself a ground to overturn a will. A person can generally leave their property as they choose, subject to certain claims that are separate from a will challenge, such as a dependant's claim for support.

A will is also not revoked just because family circumstances changed, since a change in circumstances does not presumptively revoke it. There is one important exception: a will is generally revoked by the testator's later marriage unless it was made in contemplation of that marriage.

Capacity, undue influence, fraud and knowledge and approval

The Wills Act does not set out these grounds. They are decided by common-law principles, and the Probate Court follows common-law principles where nothing says otherwise.

• Lack of testamentary capacity: the person did not have the mental ability needed to make the will.
• Undue influence: someone pressured the person so the will reflected that person's wishes rather than their own.
• Fraud: the person was deceived into signing or into the contents.
• Lack of knowledge and approval: the person did not actually know and approve what the will said.

On who must prove what, the Supreme Court of Canada in Vout v. Hay holds that the person propounding the will carries the burden on capacity and on knowledge and approval, and that burden can shift back if suspicious circumstances arise. Fraud and undue influence must be proved by those attacking the will.

Signing and formality problems

A will is valid only if it is signed at its end by the testator before two or more attesting witnesses present at the same time, who then sign in the testator's presence. Electronic witnessing is allowed using real-time audio-video if at least one witness is a practising member of the Law Society of New Brunswick.

There are exceptions. A holograph will wholly in the testator's handwriting and signed needs no witnesses. Members of the Canadian Forces on active service and mariners at sea may make a signed will without witnesses. A court may also declare a document valid as a will if satisfied it embodies the deceased's testamentary intentions, even though it does not meet the formal requirements.

Other signing issues can change the outcome. A gift to an attesting witness or the witness's spouse is void as to that person, unless at least two other disinterested witnesses attested. Creditors and executors who witness are not disqualified. A person under 19 can make a will only if married (now or previously), in a regular force or on active service, or a mariner.

How a challenge can start in the Probate Court

A caveat against a grant may be lodged with the Registrar or a probate office clerk. It stays in force for six months unless withdrawn, vacated, or a notice of intent to contest is filed. No proceedings may be taken on the application without notice to the caveator.

If the caveator receives a warning, a notice of intent to contest in Form 3D must be filed within ten days of receiving it. The Court may make interested persons parties to proof of a will in solemn form or to revocation proceedings. A party served with a citation who does not file a notice of intent to contest is not entitled to notice of further proceedings.

Filing a caveat or notice of intent to contest costs $25, and instituting a contested claim or proof in solemn form costs $50.

What to do next

• Get a copy of the will and note who witnessed it and when it was signed.
• Write down what you know about the person's health and who was involved around the time of signing.
• Collect medical records, earlier wills and relevant messages if you can lawfully access them.
• Ask whether a dependant's claim, which has a separate four-month limit from death, may also apply to you.
• Speak with a lawyer early, before an estate is distributed, so that you can confirm the deadlines that apply to your situation.

Frequently asked questions