Will Challenge and Interpretation

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A will challenge is where someone disputes (disagrees with) the validity (legal acceptability) of the Last Will and Testament of a deceased.

A testator (person who wrote the will) must have had legal capacity to execute a will, not have been unduly influenced, and have had knowledge and approval of the contents of the will. The will must be signed and executed properly for the will to be valid.

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It is up to the person propounding the will (the person alleging the will is valid) to establish, on a balance of probabilities, that the deceased had testamentary capacity (meaning mental ability, which is a legal test) when the will was executed (written). However, if undue influence (external pressure from others) is being alleged, it is up to the person alleging undue influence to prove its existence.

Interpreting Wills

The governing idea driving will interpretation (how we understand what is written) is that the “plain meaning of the will’s language” will be prioritized. This means the will be interpreted exactly as it is written.

If the will leaves ambiguity (uncertainty) in its terms, courts will use an “armchair” approach at interpreting. The “armchair” approach means that a judge must place themselves into the shoes of the testator (will writer) when the will was made, and consider all factors and circumstances the deceased would have considered when writing the will.

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