The passing of a parent can be an incredibly stressful and traumatic time under any circumstances, and a sibling contesting their will can greatly compound and exacerbate that stress and trauma. On top of this, you may have no idea of what to expect moving forward or how the situation may play out in a court. Here are a few things you should know. First off, in order to contest the will, the sibling will be required to file a notice of objection with the Estates Registrar of the court. As a result of that action, the executor of the estate will need a court hearing in order to be appointed as an estate trustee.
On What Grounds Can Someone Contest or Dispute a Will?
Canadian courts highly regard testamentary freedom, which means a will isn’t required to be ‘fair’ and, as such, the court’s primary concern is honoring the final wishes of the deceased. That said, there are limits to the policy of testamentary freedom. For example, the deceased was legally required to allow an adequate amount for any dependents who relied upon them. This can include not only children, but also spouses, both legal and common-law. In cases like this, someone may even be able to make a claim on assets that aren’t officially a part of the deceased’s estate, such as life insurance.
Can a Parent Leave a Child Out of Their Will?
As previously mentioned, testamentary freedom doesn’t require a will to be ‘fair,’ and so a parent is hypothetically entitled to leave a child out of their will. There are, however, instances in which a child can contest this decision after the parent has passed, particularly if the parent was non-specific about the reasoning for the exclusion in the text of the will itself. If, for example, the child was born out of wedlock they are considered to have equal status under the law, even if the deceased was unaware of their existence. Disabled children and minors also may have particular grounds on which to dispute the execution of the deceased’s estate.
What Should I Do If a Sibling is Contesting Our Parent’s Will?
The passing of a parent can be an extraordinarily difficult time for the family left behind, and a protracted battle over the estate only makes it more difficult. When this happens, the best thing you can do is consult a litigation lawyer familiar with estate law to analyze the will and the circumstances surrounding its writing and enforcement. They can give you a firm understanding of the validity of your sibling’s claim, what your options are regarding disputing their claim, and what steps you should take next in order to do so.