WHEN TO CONTEST THE LAST WILL AND TESTAMENT, AND ON WHAT GROUNDS
If a person drafts a Last Will and Testament and you have not been named as heir to the Last Will and Testament or you disagree with the content, you may ask yourself the following questions:
1) Do you feel slighted or cheated?
2) Did the Last Will and Testament truly represent the last wishes of the deceased?
3) Do you disagree with the content of the Last Will and Testament?
4) Do you want to legally challenge the validity of the Last Will and Testament?
A contestation of a Last Will and Testament can be based on one of the following four (4) main arguments:
a) Lack of testamentary capacity
-Did the deceased have the legal capacity to consent?
-Did the deceased have the proper mental capacity to execute a Last Will and Testament before a notary?
-Did the nature of the assets or the list of the beneficiaries/heirs have an impact on the drafting of the Last Will and Testament?
For instance, you might allege that the deceased had Alzheimer’s or dementia at the time of drafting of the Last Will and Testament.
It is important to ensure that the medical records from a professional medical practitioner confirm that, during the time of the execution of the Last Will and Testament, the deceased had the proper legal capacity to execute a Last Will and Testament.
Therefore, the production of medical records is important in the determination of the lack of testamentary capacity of the deceased.
There is a presumption that the deceased is sane and had the legal capacity to execute a Last Will and Testament and dispose of his/her assets at the time of the drafting of the Last Will and Testament.
This presumption may be reversed by proving that the Testator/Deceased did not have the proper intellectual capacities to dispose of his assets and to understand the nature of the consequences of the Last Will and Testament.
In all circumstances, the real question is: Does it pass the smell test?
For more information on the testamentary capacity, please consult the blog Are you or someone you care about living with a degenerative cognitive disease and are you well prepared?
b) Undue influence or captation
The Last Will and Testament does not validly represent the wishes of the deceased because:
-The deceased was coerced by an heir or beneficiary to the Last Will and Testament;
-The deceased was unduly influenced by an heir or beneficiary to the Last Will and Testament.
For instance, the deceased is dependent on one of the children to look after him or her and has left everything to that child much to the chagrin of the rest of the children.
Moreover, a nursing care aid or a person that cares for the Testator that is not the spouse or a relative of the Testator may not inherit if the Last Will and Testament was executed at the time that the Testator/deceased was receiving medical care.
In the recent case of Delli Quadri vs Antonacci, the Court of Appeal clarified the captation as:
‘’(…) que celui ou celle qui invoque la captation doit en faire la preuve en démontrant qu’on s’est emparé de la volonté du testateur et que les gestes posés l’ont, de façon déterminante, amené à signer un testament qu’il n’aurait pas signé autrement. Ces gestes doivent s’apparenter à de la fraude. Des manifestations de dévouement – sincère ou simulé – de nature à susciter l’affection ne sont pas suffisantes’’ (par. 8)
Each situation is assessed on a case by case basis where all the facts are considered.
Once a Liquidator has accepted his/her role as Liquidator, the Liquidator has an obligation to render a proper inventory accounting of the debts and assets of the deceased, kindly refer to Settling an estate.
The succession is presumed to have been accepted by the heirs when the heirs knowingly refuse or neglect to make an inventory themselves or to make a motion to the courts in order to force the Liquidator to make a proper inventory within 60 days following the six (6) month period of deliberation. Should this period of time not be respected, the heirs may be liable for the debts of the succession beyond the value of the property they take.
For more information on the role and responsibilities of the liquidator, kindly click on the link 5 things to know about the role and responsibilities of the liquidator.
If you wish to contest the role of the liquidator, here are some ways of contestation:
a) Destitution and replacement of the Liquidator:
If the liquidator does not render a proper accounting, you as an heir to the estate, may request that the liquidator be relieved of his duties and replaced with a replacement liquidator. For more information see 5 things to know about making an inventory or the failure of the liquidator to provide an inventory.
For a complete inventory please consult the free form and spreadsheet from Schneider Attorneys, by clicking here.
b) Rendering of an account and safeguard order:
If the Liquidator does not render a proper inventory accounting, you may request a safeguard order motion from the court to ensure that the Liquidator render a proper accounting of the inventory within a specified period of time from the date of the judgment. Failure to comply with this order, the Liquidator shall be relieved of his duties and replaced with a replacement Liquidator.
For more information on the obligation of the liquidator to render a proper inventory accounting and the communication of documents, please consult 5 things to know about the communication of documents to heirs.
c) Partial payments:
Based on article 807 of the Civil Code of Quebec, when the succession is manifestly solvent, the liquidator may pay advances to the creditors of support and to the heirs and legatees by particular title of sums of money if all the creditors and legatees by particular title can be paid. The advances are imputed to the shares of those who receive them.
For more information on whether you are entitled to receive a partial payment, please consult Show me the money, when can I receive my inheritance? and the case Gaetano vs Gaetano recently won by Schneider Attorneys clients whereby the client was entitled to partial payment.
Prior to contesting the Holograph Will or a Will in the presence of witnesses, one must determine whether the Last Will and Testament represents the last wishes of the deceased despite its lack of formalities.
Each case must be determined on its own merits and evaluated on a case by case basis. For more information on the various kinds of will and testament, please consult 5 things to know about wills, codicil and ab intestat.
a) Holograph Will:
The Holograph Will is required to be written entirely by the Testator and signed by him without the use of any mechanical process. Failure to conform to those formalities could be grounds to contest.
b) Not formally executed before two witnesses:
In the event that the Last Will and Testament was not made in the presence of two (2) witnesses or was not properly signed by the deceased or before two witnesses, at the same time, could be grounds for contesting the Last Will and Testament.
c) Contestation of codicils
As stated by the Superior Court in Bank of Nova Scotia Trust Company and Flanagan Smith, won by Schneider Attorneys clients, it is possible to contest modifications to the Last Will and Testament regarding the formalities that would have not been respected.
In this case particularly, it was a situation of deferred signatures between the deceased and the witness, which invalidated the codicil.
For more information on the contestation of codicils, please consult A will modified against your will? What can you do?
Pursuant article 2821 from the Code Civil of Quebec, there is a possibility to contest an authentic act through a procedure called improbation “to contradict the recital in an authentic act of the facts which the public officer had the task of observing.”
More specifically, when an authentic act, for example a last will and testament, does not represent the true wishes of the testator due to a misconception in the writing of the authentic act by the public officer, such as the notary, it is possible to contest the validity of such an act.
If the misconception in the writing affects a non-essential part of the Last Will and Testament, it would be possible to contest and annul in part the clause or element of the Last Will and Testament.
However, in a case of a misconception from the notary on an essential part of the Last Will and Testament, it could be possible to contest and annul the entire authentic act of the Last Will and Testament.
The case Côté c. Côté is an example of contestation of an authentic act granted by the court. The facts in this case are as follows, the notary had made a misconception in the writing of the Last Will and Testament by adding the word ‘’all’’ his children as heirs and then only naming four (4) of his five (5) children, which was his true last desire. The word ‘’all’’ has been removed from the authentic act in order to represent the true last desire of the testator.
OTHER CIRCUMSTANCES TO CONSIDER WHEN CONTESTING A WILL
1) Spouse was not dealt with fairly under the Will:
Rules of family patrimony should apply. The surviving spouse living at the immovable residence of the deceased has preference over the other heirs. As such, he/she can require that the family residence or the rights conferring use of it, along with the movable property serving the use of the household, be placed in his or her share.
2) Legal costs:
Reasonable legal fees of the attorney may be paid out of the estate in order to contest the validity of the Last Will and Testament.
 Section 276 of the Loi sur les services de santé et les services sociaux and section 761 of the Civil Code of Quebec.
 Delli Quadri c. Antonacci (C.A., 2018-08-30), 2018 QCCA 1466
 Section 640 and 800 of the Civil Code of Quebec
 Gaetano c. Gaetano, 2018 QCCS 79
 Section 714 of the Civil Code of Quebec.
 Section 726 of the Civil Code of Quebec.
 Section 727 to 730 of the Civil Code of Quebec.
 Côté c. Côté, 2012 QCCS 2013 (CanLII)
 Section 856 and 857 of the Civil Code of Quebec
If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at email@example.com
The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.