Probate: Resisting an application

When someone dies leaving a will, the individuals named in the will as executors are the only ones with legal power to deal with the administration of the estate.  In some cases, a third party may oppose the executors’ application to court for a Certificate of Appointment as Estate Trustee with a Will. The expert probate and administration lawyers at Rogerson Law Group have years of experience advising executors on the death of a loved one. 

Resistance

In some cases, an individual may contend that a will is invalid, for instance, on grounds it was executed under duress or the testator had insufficient mental capacity to make a will.  Typically, it will be a beneficiary or potential beneficiary who will oppose the application.

It will be for the opposing applicant to prove that the will is invalid, for instance, that the testator was not of sound mind at the relevant time, or was under undue influence before signing the will.  Witnesses may be called to give evidence, and documentary evidence such as emails or letters can help to prove the case.  The court will consider all the circumstances, and only when it is satisfied the will is valid will it issue a signed certificate to the executors confirming their authority to administer the estate.

In a recent case (Chang v. Leung, et al1), the applicant opposed the executrix’s application for probate of her mother’s estate based on the issue of undue influence and testamentary capacity.  The Court of Appeal dismissed his appeal and allowed the probate to proceed.

What happened?

The deceased died in 2007 and her late husband had died in 2001. She left one of her children (the applicant) just $10 in her will and the rest of her estate equally to her other children.  In her will, the deceased mother said the small bequest was because of a poor relationship between the two. The applicant son had also received the sale proceeds from a property in Shanghai.  Despite the applicant’s resistance to the sister’s application for probate, an order of probate was eventually granted.

On the applicant’s appeal, the order was set aside and the trial judge had to then consider issues of undue influence and testamentary capacity to make a will.  The judge dismissed the applicant’s claims of lack of capacity and undue influence, competence and irrational provisions, and admitted the will to probate – a decision then upheld by the Court of Appeal.

When a will is properly executed, the courts are reluctant to interfere with a testator’s wishes, even when these wishes seem unreasonable or unfair to potential beneficiaries. Had the Court found in the applicant’s favour, the will would have been deemed invalid and the estate would have been administered under the statutory rules of intestacy.

How can we help?

If you are an executor or a beneficiary and need legal advice on opposing an application for probate, contact the experienced estate and administration lawyers at Rogerson Law Group for advice and support.  We have years of experience in advising both executors and benefiaries in the administration of estates, both small, and large and complex.  Contact us now for urgent advice.

Rogerson Law Group provides estate litigation services in the entire Greater Toronto Area including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and associated offices in Ottawa.

Contact us now at enquiries@rogersonlaw.com

135951 Da Wei Chang v. Elizabeth Foo-Yun Chang Leung, Executrix of the Estate of Hsieu Chang, also Known as Chen Hsieu Chang, aslo known as Chang Chen Hsieu, Deceased, et al

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