You think some reasons to contest a will do not apply in your case? You might be making a mistake.
Attacking validity of a Will, remember to put all the allegations possible in your application. This is what the Court of Appeal in the recent case Succession de Ashegh (2019 QCCA 792) reminds us. The first instance Court found that an error (or vitiated consent) was a good reason to annul the Will.
A person dying of cancer had signed the Will in question about a month before the death. He removed the wife and the daughters from the heirs: presumably, because of the wife’s infidelity. The deceased’s sister and the new heir and liquidator apparently gave reasons to reproach her for undue influence. But the judge noted that the deceased made his decision independently of that: therefore, the “undue influence” didn’t change anything in the result. What the deceased didn’t understand though, according to the judge of the first instance, is the consequences of his Will change. This misunderstanding was seen as an error. And error is one of the possible reasons to contest a Will. Therefore, it was successfully annulled at first.
What was the problem?
The problem was, though, that this error was not in the allegations, and the parties didn’t have chance to bring up and discuss evidence with respect to that. For this reason the decision was invalidated by the Court of Appeal.
The Court of Appeal noted that if the judge of the first instance informed the parties and allowed them to make representations with respect to the error, this decision might be justified.
Another interesting note is that the Quebec highest Court confirmed that allegation of vitiated consent doesn’t require improbation.
This blog post contains only general information, please don’t take it for a legal advice. For all legal questions regarding your particular situation do not hesitate to consult your lawyer.
