You have just learned of the death of a loved one from whom you believed you were to inherit. This person had often mentioned that you would inherit certain assets or sums of money upon their death.
However, you learn from other family members that, to your great surprise, you are not mentioned at all in the most recent will, or you learn it through a will search with the Chambre des notaires du Québec or the Barreau du Québec.
This is surprising, even shocking, especially if you are in possession of an earlier will that mentions your rights as an heir.
You therefore begin to ask serious questions to explain this unexpected turn of events. You are looking for explanations, and that is perfectly normal. You also question your rights to contest the deceased’s most recent will. There are three main reasons justifying the annulment of a will to validate an earlier will; here they are:
- Undue influence or manipulation by a close relation
Undue influence, also known as “captation,” is defined as follows:
“The use of reprehensible, even fraudulent, maneuvers to induce a person to grant a gift that they would not otherwise have granted.” The words “suggestion and captation” illustrate quite well what it is about: someone seizes the testator’s will and suggests how they should make their will. But what should be considered suggestion and captation may vary from case to case, depending on the specific circumstances of the matter. The testator’s age, state of health, and social condition may have played a role in the degree of resistance they could offer to the maneuvers they were subjected to 1.
To challenge the validity of a will with the ultimate goal of obtaining its annulment, an Application for Annulment of a Will must be filed before the Superior Court. The burden to be met in such a context is to demonstrate the existence of particular influence exerted on the deceased to induce them to establish specific bequests in their will for the benefit of a particular person. Like any civil action, the burden of proof must be met according to the “balance of probabilities.” In other words, the plaintiff must demonstrate that it is more probable than improbable that this situation actually occurred.
One of the main challenges when such an action is initiated is that the evidence is generally made by presumption. Indeed, “undue influence often occurs behind closed doors 2 .” These presumptions will generally be established when we can demonstrate a phenomenon of sudden isolation of the deceased, for example, leading to the creation of a new will. It is also possible, in this situation, to consult the deceased’s medical file, which could also be revealing in certain respects.
- The deceased’s incapacity
This second ground is the deceased’s incapacity to make a will at the time it was completed. Although, depending on the form of will chosen by the deceased (notarized, in the presence of witnesses, or holograph), certain measures are in place to limit the possibilities of the deceased’s incapacity to sign a will, these situations can still occur despite everything.
In such circumstances, relevant indicators can be revealing for the heir wishing to challenge the validity of the said will, such as the deceased’s vulnerability and incomprehension during their lifetime, or the existence of a cognitive illness afflicting them. Once again, the deceased’s medical file within a healthcare institution will be relevant to consult contemporaneously with the signing of the will challenged by an action for annulment of the will.
However, let us remember that the capacity to make a will is presumed. Everyone is therefore presumed to be able to sign a will representing their last wishes. To convince the court of this incapacity of the deceased, the heir wishing to challenge the said will must prove, often through an expert, the deceased’s inability to understand the nature of the legal act completed and the consequences arising therefrom.
This second ground for contesting a will can also be combined with the first ground related to undue influence. One does not preclude the other.
- Contesting the form of the will
It is important to specify that when the will found is either a will made in the presence of witnesses or a holograph will, it will be necessary to have this will verified by the court. This procedure aims to obtain the Superior Court’s approval as to whether the will found meets all the formal conditions required to be considered valid according to the requirements established in the Civil Code of Quebec. You could therefore be able to intervene on the validity of a will at the stage of its verification.
To go further
It is therefore possible to contest the verification of the will. With the help of a lawyer, you will gain clarity on the method that suits you.
1. Perrault, “Études juridiques en hommage à Monsieur le juge Bernard Bissonnette,” Dictionnaire de droit privé et lexiques bilingues.
2. Guay v. Guay, 2024, QCCS 4602.
In summary
- Can a will be contested after the liquidator’s death?
Yes, it is possible, depending on the will, the deceased’s condition at the time the document was signed, and the evidence you possess.
- Is a holograph will easier to contest than a notarized will?
Yes, absolutely, since a notarized will is an authentic instrument.
A will written, dated, and signed by hand is not less valuable than a notarized will in the eyes of the law, but it can be more easily contested as it is not an authentic instrument.
- Does contesting automatically block the settlement of the estate?
Contesting a will can indeed complicate and slow down the settlement of the estate, but it is not automatic.
