Toronto Area Last Will and Testament Challenge Lawyer
After a loved one dies, a dispute can develop regarding the validity of his or her Last Will and Testament. You might be a beneficiary who feels that the Last Will and Testament does not represent the testator’s true wishes or an executor who feels that it does represent the testator’s true wishes. Either way, it is crucial that you have a lawyer who knows how to handle issues of testamentary capacity, undue influence and fraud. If you are facing a Last Will and Testament challenge, I will work hard to resolve the dispute, either through settlement or litigation. (Note: Waiting can harm your case and, in some cases, your case can become barred by statute.)
One of the most common ways that a Last Will and Testament is challenged is by alleging that the person who made the Last Will and Testament did not have the mental capacity to understand what was going on. The testator must have understood and approved of the contents of the Last Will and Testament. If the testator did not understand or approve of the Last Will and Testament, then the Last Will and Testament is invalid. (For details of my approach, scroll down.)
Another common way to challenge the validity of a Last Will and Testament is through an allegation of undue influence. Undue influence arises where a testator’s Last Will and Testament was the result of coercion or fraud. (For details of my approach, scroll down.)
A Last Will and Testament can also be invalidated if the formalities in the execution of the Last Will and Testament are not adhered to. In Ontario, certain laws govern how a Last Will and Testament is to be signed. (For details of my approach, scroll down.)
HOW I CAN HELP
If you find yourself dealing with a Last Will and Testament Challenge, you should contact me right away to discuss your situation. During this discussion, I will ask you for an overview of the situation and give you my preliminary analysis. If you want to proceed to meet with me, we can schedule an appointment to discuss the matter in greater detail.
At the conclusion of the meeting, I will advise you of your rights and responsibilities and will discuss any of the options that may be available. With me, you can expect dedicated and aggressive representation.
- Did the person who inherited the most from the Last Will and Testament live with the testator? Where did the other beneficiaries live?
- Did a lawyer prepare the Last Will and Testament for the testator? If so, who hired that lawyer? Who paid that lawyer? Who wrote the cheque? Was the cheque prepared in the testator’s handwriting or was it only signed by the testator? How did the testator get to the lawyer’s office? Did the main beneficiary take the testator to the lawyer’s office? Did that lawyer ever represent the testator before? Did that lawyer ever represent the main beneficiary? Did the testator have a previous lawyer who wasn’t used?
- If a lawyer didn’t prepare the Last Will and Testament for the testator, who did? Was he or she the main beneficiary? Did that person come over with some friends to act as witnesses and have the testator sign it?
- Who was present when the testator signed the Last Will and Testament? Was the main beneficiary with the testator at the lawyer’s office when the Last Will and Testament was signed?
- Who set up the Last Will and Testament signing and what happened at the Last Will and Testament signing? Who was there? What happened at that meeting – moment by moment? Who set up the meeting? What was said when that appointment was set up?
- What happened to the original Last Will and Testament? Was it left with the lawyer or did the main beneficiary receive it? One common argument is that the main beneficiary was not present when the testator gave instructions for the Last Will and Testament but this argument is diminished if it is determined that the main beneficiary was given the original Last Will and Testament after the supposedly “confidential meeting”.
- Did the testator speak English fluently?
- Are there any friends or other associates of the testator who can comment on the testator’s state of mind?
- Are there gifts to persons (caregivers, service providers, friends) who are not the natural objects of the elder’s love and commitment?
- Was the testator dependent on the main beneficiary? Did the main beneficiary depend on the main beneficiary for essentials, such as care, transportation to and/from doctors, or food? Was the main beneficiary critical to the testator’s independence and/or ability to avoid a nursing home?
- Did the testator know the value of his or her estate?
- Does the Last Will and Testament represent a significant change from a previous Last Will and Testament which the testator made?
- Was the Last Will and Testament kept a secret from family members?
- Was there an unnatural or unjust gift to a beneficiary as compared to those who otherwise would naturally be expected to take?
- Was the testator having memory problems? Did he or she have Alzheimer’s or dementia? Did the testator have trouble remembering his or her children’s names? Did he or she have trouble communicating? Did he or she have trouble remembering events? Did he or she keep repeating himself or herself? Did he or she keep asking same questions again and again? Did he or she have difficulty with his or her comprehension? Did he or she have trouble staying on a particular topic? Did he or she have poor eyesight or hearing?
- Was the testator on medication?
- Did the testator have any physical problems or impairments?
- Did the testator become withdrawn at any point or seem physically frail, in pain or unhappy?
- as the testator vulnerable because he or she did not have the ability, perhaps due to ill health, physical frailty or social isolation, to stand up for himself or herself?
- Was the main beneficiary the one making professional appointments (such as for his lawyer, doctor, etc.) for the testator and/or selecting his or her advisers?
- Did the main beneficiary always attend professional appointments (ie. the testator’s doctor) with the testator so that the testator does not see the professional alone?
I also collect all the relevant documents, including the following:
- medical notes and records from the testator’s family doctor and specialists to see if there are any indications of memory loss or other relevant information.
- pharmacy notes and records to see if the testator was taking any mind altering or potential memory impairing drugs.
- lawyer’s notes and records.