Prior to determining what elements the Ontario Superior Court of Justice will take into consideration, when establishing a basis for challenging a Will, you should bear in mind and recognize that it is extremely uncommon for the courts to make use of suspicious circumstances entirely on its own. For this reason, it will certainly be more than likely that the courts will view suspicious circumstances with a Will challenge based within the context of undue influence or lack of testamentary capacity.
What Evidence Is Needed for Suspicious Circumstances to Exist?
To identify if various questionable instances existed, our estate law office in Toronto and Bowmanville always encourages that you document as much relevant information where you know of any instances neighbouring the: preparation of the Will; capacity of the testator, at the time the Will was being drafted, executed and also witnessed; or even any kind of undue influence, coercion, or fraudulent activity that may have jeopardized and eliminate the testator’s wishes to make their own free choice.
Where you have the ability to generate a solid structure bordering suspicious circumstances and achieve success in persuading the courts that suspicious circumstances did without a doubt exist, the courts may conclude on the basis that ordinary presumption of capacity be actually eliminated, which additionally includes the extraction of any type of rebuttable anticipation that the testator either understood or even accepted of the components within their Will.
Suspicious Circumstances and Mental Capacity
Keep note, if you are moving towards the situation where you strongly believe there is actual suspicious circumstance encompassing the testator’s mental capacity, the legal burden hinges on you to prove that the testator was indeed lacking the mental capacity, knowledge, and as well approval of the components within their Will. Only when you are able to prove all THREE (3) elements does the lawful burden then rest upon the person who drafted the testator’s Will to illustrate that the testator did undoubtedly possess the mental capacity, knowledge, and the approval of the contents within their Will.
File a Court Application & Court Order
Where you strongly believe there is suffice amount of proof and evidence to assist your claim to challenge a Will, the next measure to take is identifying whether a Certificate of Appointment of Estate Trustee was ever issued by the Ontario Superior Court of Justice. Where the Certificate of Appointment of Estate Trustee was issued, alongside a court order, you will then need to file and submit a court application to the Ontario Superior Court of Justice as soon as you possibly can. Until the legitimacy of the Will is actually determined, the type of court order you will be requesting is to have the individual who was appointed as the Estate Trustee return the Certificate of Appointment of Estate Trustee to the Ontario Superior Court of Justice.
Red Booth Law | Toronto | Bowmanville | 416 953 0040 | info@redboothlaw.com
NOTE: It's important to know that laws and regulations are subject to change, and the information provided in the article may not reflect the most up-to-date legal requirements. Before making any decisions or taking any action, it's essential to consult with a legal professional to ensure that you have the most current and accurate information.
The content provided on this website is for informational purposes only and should not be considered as professional legal advice. If you have specific questions or concerns about your situation, it's always best to consult with our estate lawyer who can provide personalized guidance.