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Challenging Wills

Our Alberta Estate Litigation Lawyers are Experienced in All Aspects of Will Challenges

In order for a last will and testament to be valid in Alberta, it must meet strict formal requirements.

Challenging a Will for Testamentary Capacity

The person making the will must have the required mental capacity to understand the nature of what they are doing. This is known as “Testamentary Capacity.” In order for a person to be deemed to have testamentary capacity, they must be sufficiently clear on their own understanding and memory to know in a general way:

  • The nature and extent of their property
  • The persons who are the natural beneficiaries of their assets
  • The testamentary provisions they are making
  • Must be capable of appreciating the above factors in relation to each other to form an orderly desire as to the disposition of their property.

This does not mean that anyone with memory issues or a mental disability is unable to make a will. Each case is fact specific and evidence from friends, family, physicians and others can be used to challenge or support testamentary capacity.

Challenging a Will for Undue Influence

In the case of undue influence, it must be shown that there was pressure or influence to such a degree so as to deprive the maker of the will of their decision-making autonomy. To put it another way, the influence has to be significant enough to undermine the free choice of the person making the will. Although there are often legitimate concerns surrounding pressure or influence from beneficiaries or potential beneficiaries, claims of undue influence are context specific and complex. Our estate lawyers are experienced in dealing with these difficult cases.

Challenging a Will for Issues of Execution

There are also other areas where wills can be challenged including technical issues of execution. There is also a requirement that the person making the will have knowledge of the contents and approve of the will at the time of execution. The Calgary wills lawyers at Carbert Waite LLP are experienced in providing advice and representation on these and all other aspects of wills challenges.