To be valid, a will must be a free expression of the wishes of the testator with respect to the distribution of his or her estate upon death. A will must be in writing and conform to the requirements of execution as set out in Part I of the Succession Law Reform Act.
The common challenges to the validity of a will are:
- the will was not executed in accordance with the requirements of the Succession Law Reform Act;
- the testator lacked testamentary capacity;
- the testator did not have knowledge of or approve the contents of the will; and
- the testator was unduly influenced.
Less frequently, wills are also challenged based upon allegations of forgery or fraud.
The procedure followed when seeking to determine the validity or invalidity of a will is very different from the procedure involved in general litigation. There are also a number of specific rules of evidence having unique application to will challenges. The onus of proof is placed upon the propounder of the will to demonstrate that a will was duly executed; that the testator had testamentary capacity at the time that the will was made; and, that the testator had knowledge of and approved the contents of his or her will. A will challenger has the onus of proof respecting allegations of undue influence. The presence of various evidentiary presumptions impact upon the manner in which evidence is proffered in court challenges involving the validity of a will.