Contesting A Will­—A Trend Or Not?

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Some writers have expressed concerns about a disturbing trend coming out of the United Kingdom—the rising incidence of people challenging wills. This trend, according to Toni Andreola, is beginning to emerge in Canada as well.

Ms Andreola, who works with Capacity Marketing for Charities, wrote recently that the exponential growth of disputes over wills, known as “contested probate,” is one trend that we can do without. She suggested that badly drawn wills is one of three factors driving the rise.

Ms Andreola reported that figures published in the UK show mounting cases of contested probate. Fifteen years ago, contested probate was rare. Now, some UK law firms have whole departments dedicated to the subject. “This is coming to Canada unless we are very careful.”

The increase of second relationships is a driver and rising property prices another. People in charities’ target audience for legacies (folks 55 and over) are more likely to have mixed families owing to re-marriage, with tangled assets and relationships…..House prices have rising by almost 50% in the last decade—pushing up contested rates because there’s more at stake.

Regarding the first factor—poorly drafted wills—Ms Andreola has this to say:

As more people write their wills themselves, more mistakes are being made. A self made will might work for a young person with few assets who wants to sort out a will before going travelling. But for more senior people, the variety of assets and complexity of relations matter much more.

Greg Noseworthy, a coordinator with the Public Legal Information Association of NL, suggested that, “while contesting wills is not an uncommon legal matter, it is not something that we have seen as a growing trend within the province. Wills are certainly contested from time to time, and for various reasons (whether capacity during signing was at issue; a dependent person was not given adequate provisions; or otherwise).”

Steve Marshall, of Roebothan, Mackay and Marshall, concurs that contesting wills is not all that common or a growing trend but, “given the aging population and the fact that a lot of people these days pass away with fairly sizeable estates, I can see that happening if some family member feels he/she was being treated unfairly in the will.” He went on to say that he personally feels, “if the person making the will did so of their own free and clear mind, then whatever they said in the will should be honoured.”

Both lawyers encourage you to arrange for a legal will and to do it through a lawyer. In that way, it is less likely that it will be contested.

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