Estate Litigation: Who Can Contest A Will?

• Published date: 09 October 2020
• Subject Matter: Family and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
• Law Firm: McKercher LLP
• Author: Ms Paige E. Van De Sype

In any application to set aside a Will, there is the threshold issue of whether the person has standing to bring the proof in solemn form action. An individual would seek to set aside a Will when they believe it is invalid by reason of improper execution, the testator did not have capacity, or the testator was unduly influenced. In addition, the Saskatchewan Court of Appeal commented on the potential operation of the historical doctrine of righteousness, which would allow the Court to set aside a Will if a person could not justify the "righteousness" of the transaction when that person was "instrumental" in the drafting of the Will and either received a benefit greater than other beneficiaries or if other circumstances exist that raise the "suspicion" of the Court.¹

In accordance with the Queen's Bench Rules, a person who "is" or "may be" interested in the estate may have standing to set aside a Will.² In either circumstance, merely claiming an interest or potential interest is insufficient for the Court to grant standing. The person must adduce sufficient evidence to satisfy the Court.³

A person who "is" interested in the estate has been defined to include the following:

• Those who are entitled to the estate through intestacy, a legatee in the Will, and an executor or beneficiary under any other testamentary instrument.⁴
• Any person entitled to support pursuant to The Dependants' Relief Act, 1996, a spouse or former spouse pursuant to The Family Property Act, and sometimes a beneficiary under The Fatal Accidents Act.⁵

A person who "may be" interested in the estate is defined to include:

• those with a potential interest under any other valid testamentary document or under an intestacy and
• those who "are designated in the will or other such document to perform some function in the course of carrying out the testator's intention."⁶

The person must have either a legal or financial interest in the outcome of the estate: "The person claiming standing must have a stake in, and be affected by, the outcome of any challenge to the will".⁷

If a person is able to produce sufficient evidence to satisfy the Court of their standing, then they will still need to prove to the Court that there is a genuine issue for trial.⁸ The grounds being advanced to set aside the Will, be it incapacity undue influence or improper execution, will determine the types of evidence that should be adduced to prove there is a genuine issue for trial. As the representative of the estate,...