We sometimes get inquiries from a relative of a Will Maker wanting to challenge their relative’s Will prior to their relative’s death. Because a Will does not take effect until the death of the Will Maker, this cannot be done. A recent Ontario Court of Appeals case confirmed this.
While a person is mentally competent, they can change their Will at any time before their death, so the Will that a person is concerned about may not be the same Will that is in effect when the Will Maker dies.
The estate of a deceased person consists of the assets they own at the time of their death, so one cannot determine what the estate will consist of until the time of death. While alive and competent, a person can sell or give away assets as they wish, subject to any legal obligations they have relating to those assets. Many people make significant gifts prior to passing, to reduce probate fees, and to help their children or grandchildren when they need it the most.
Once a Will Maker has passed, the spouse and children of the Will Maker have the right to apply to vary the Will if they have not been adequately provided for, but this right does not arise until the Will Maker has passed. Other relatives such as grandchildren, stepchildren, or siblings have no right to apply to vary the Will for adequate provision.
Likewise, the right to challenge the validity of a Will because of undue influence or lack of capacity does not arise until the Will Maker has died.
If you have questions about estate planning, please contact one of our estate planning lawyers. If you have questions about challenging a Will, please contact one of our estate litigation lawyers, after the Will Maker has passed.
