Date: 10 Dec, 2021| Author: Fred Streiman

The traditional grounds of attack against a Will are:

1. The Willmaker aka Testator lacked testamentary capacity, in other words, was not mentally well enough to make a will

2. Undue influence, in other words, the Willmaker was coerced, in essence, forced into making a Will against their will

3. A lack of knowledge and approval of the Will, in other words, the Willmaker signed a document not really appreciating what it was; and

4. Failure to comply with the formal requirements under the Succession Law Reform Act.   Such as the Willmaker forgot to sign it.

However, there are other far more exotic and less frequently used grounds which we will now discuss.

MISTAKE by the Willmaker as to the meaning of the Will

One such ground is a mistake on the part of the Willmaker. This is very different from an error made by the lawyer who drafted the Will on behalf of the testator. One should examine our blog article on Rectification. In this instance, we are talking of where the Willmaker simply did not appreciate or understand the legal impact of what they were signing, even after it had been explained to them or had an opportunity to have that explanation given to them.  Linking up with one of the four traditional grounds outlined above, if one who objects to the Will can prove that the testator did not understand the contents of the Will, then the Will’s validity indeed can be challenged successfully based upon a lack of knowledge and approval of the Will. However, if after explanation is received and you misunderstood, you may be out of luck.  If one looks at the 2010 decision of Re the Estate of Blanca Esther Robinson, it was alleged that the now-deceased testator did not appreciate the meaning of relatively clear wording. We do not need to go through the specific facts of that case, but the court failed to set aside the Will.  The court held that it would not fix a Will correcting a testator’s mistaken belief about the legal effect of a clause, which the testator had reviewed and approved.

Public Policy

The clearest example of that is a Will of which contains provisions that are clearly driven by motives that are contrary to public policy. The most obvious example is a provision in a Will that is based on racial discrimination. The discrimination must be patently obvious from the Will itself rather than from evidence given outside of the four corners of the Will. There is a prominent Ontario Court of Appeal decision in Spence v BMO Trustco in which a Will simply disinherited one child. The recipient child objected saying that the reason for it was that she had married a person of a different race, which was something that the testator/Willmaker was opposed to. While the trial judge agreed with the objecting child (see our blog article titled Wills and Estates – Cancelling a Will for Racism), the Court of Appeal said no, there was nothing on the face of the Will that is racially prejudicial in itself and the court will not admit extrinsic evidence since the will was clear, unambiguous and unequivocal.  I would ask our readers that to look at my recent blog article on the Armchair Rule on Will interpretation. There is some wiggle room here in which it is not necessarily a precondition to examining extrinsic factors when the provisions of the Will are clear and unambiguous. However, judge-made law frequently differs as it reflects the human origin of its source.

Mutual Wills  – Constructive Trust

I would recommend our blog article on Mutual Wills.  This is a further elaboration of this concept. A Mutual Will is different from a Mirror Will. It is extremely common for married couples to basically make Mirror Image Wills of the others. What differentiates a Mirrored Will from a Mutual Will is that the latter represents a deal that cannot be broken. An example of a Mutual Will is a spouse leaving everything to the other and upon the death of the last spouse, then all to their children. However, a Mutual Will unlike a Mirror Will must reflect that there was a binding agreement between the parties that upon the death of one, they will not change after the first spouse’s death the terms of their Will. If they do so, then their assets are subject to attack by the children who have lost out under a revised Will and they may seek a constructive trust.

As we explained in our Mutual Will blog, it is important for a finding of binding Mutual Wills that there must be clear evidence of such an agreement and there is no better place for that evidence to be put forward then in the Mutual Wills themselves. If there is indeed a non-compliance with a Mutual Wills agreement, that on a tactical basis is not a ground upon which the validity of the Will should be challenged, but rather the appropriate remedy would be to start a lawsuit against the estate for breaching the Mutual Wills agreement.

Breaking other contracts or obligations under them

It is not uncommon in a separation agreement to agree that a certain asset will be transferred onto the parties’ children upon death or to the former spouse. Alternatively, a testator/Willmaker may have entered into a shareholders agreement. If the will is contrary to the provisions of an outside contract, there will be trouble. However, like the Mutual Wills discussion above, this is not a reason for a Will challenge but rather grounds for a lawsuit against an estate to enforce the contract.