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Tuesday, January 21, 2020

The right to challenge a will vs the right to win.

I'm often asked about the ins and outs of leaving an individual out of a will. Whether the person omitted from the will is an adult child, a friend, or even a spouse, the topic of whether that person can legally be left out comes up repeatedly.

I've recently come across an excellent article written by Isabelle Cadotte, a lawyer with Scotia Wealth Management, on a blog called All About Estates. In the article, Ms. Cadotte talks about this very topic. It's very clearly written and I recommend it to all readers. Click here to read it. I fully support Ms. Cadotte's information given in this article. In particular, I support her statement that if you are a person who believes that he or she should have been included in the will, such as a child of the deceased, the law might give you a right to apply to challenge the will. It does not necessarily guarantee you a win.

This is an important point. Much of the time, when someone is left out of a will, the question they ask me is "can they do that?" It's much too simple a question, really. The implication is that I should be able to say yes or no, and that's the end of it and a "no" should mean it's a slam-dunk win and that's that. Nothing could be further from the truth. If you have the right to challenge the will, then you have the right to start a lawsuit, to bring evidence, to question the evidence brought by the other side, and to have a judge decide whether you have to be included or not. So if I say "no they can't do that", what I mean is that you have the right to bring a challenge. You are not automatically going to win.

Nor, of course, are you automatically going to lose. The point is, your right is to have the issue heard and decided.

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