Generally, a Will that is made in writing and signed at its end by the will-maker and two witnesses (all 3 present together at signing) and that is read by or to the will-maker, who appears to understand it, is presumed to be valid.
However, since the sweeping revisions to our Wills and Estates legislation, which came into force in 2014 with the Wills Estates and Succession Act, if a document, including electronically stored documents, does not conform with the formal requirements of a Will, the Court may, nonetheless, declare it to be a Will provided it reflects the authentic, final, testamentary wishes of the maker of the document.
Court orders may also be required to interpret or rectify Wills.
Challenges to a Will
A Will may be challenged on the basis that it is not valid or that it is not fair in the distribution of the assets falling under the Will into the will-maker’s estate.
Validity of a Will
The presumption that a duly executed or properly signed Will that complies with the formal requirements of a Will may be rebutted if there are suspicious circumstances surrounding the making of the Will. These circumstances are many and varied and may include, for example, a Will being made by someone with dementia or being a significant departure from the provisions of a former Will.
To be valid, not only must a Will be properly signed, but it must also be made by a will-maker who had the necessary capacity to make the Will and understand the nature and extent of his or her assets, who should benefit from his or her estate, and what he or she is doing. It must also be made by the will-maker exercising his or her own free will and volition, free from any undue influence.
A will-maker has a statutory obligation to make adequate provision for his or her surviving spouse – married or common-law, and children – including adopted children (but not step-children). If he or she does not do so, the Court can vary the distribution of the will-maker’s estate from the distribution set out in the Will.
The factors which a Court considers in varying a Will invariably consider the competing claimants’ relationships with the will-maker, but are otherwise many and varied, as are the families who seek variations of Wills.