Estate planning documents are essential in determining how assets are to be distributed after someone passes away. However, what happens when there’s more than one will?
While it's commonly believed the most recent will takes precedence, that’s not always the case.
We have witnessed many scenarios where more recent wills have been contested by certain beneficiaries. Most often we see this in split family situations or when beneficiaries feel they’ve been treated unfairly in the will.
For example, if a parent remarries and the will is unexpectedly changed so either the adult children receive significantly more of the assets than the new spouse or, visa versa, when the new spouse receives a much larger portion of the assets than what the adult children were expecting.
Beneficiaries may contest the will if they feel it was created under duress or subject to undue influence, which easily can occur if the will maker is not of sound mind when they are completing their will.
If a judge determines that the most recent will is not a legally binding document, a previous will may be consulted instead. If the court finds a will invalid with no other will to be found, it assumes the deceased has died intestate -- without a will – and provincial intestate rules would be implemented.
So, what is a valid will?
A will is considered valid if:
1. Is it signed and properly witnessed AND
2. The deceased was of legal mental capacity when making the will.
Contesting a will can be lengthy and costly, so it’s always recommended to consult legal advice before doing so.