Unconventional Estate Plans and Will Challenges

Billionaire Hermès and his Lucky Gardener

By Apeksha Jain

Estate planning is a critical aspect of financial management that ensures the orderly distribution of assets after an individual's passing. While many people opt for conventional approaches when structuring their Wills, it is not uncommon to hear about the richest of the rich, who opt for unconventional, sometimes eccentric approaches to plan their Estate.

Most recently, news about the 80-year-old billionaire Nicolas Puech, who is also a descendent of the founder of the luxury brand Hermès, revealed that he plans on adopting his 51-year-old former gardener and will leave him with half of his estate, which is currently valued at $11 billion USD in fortune and $5.9 million USD in properties around the world.

News like this often gets you thinking, can I leave my estate to whoever I want? Yes and No.

In Ontario, unlike some other jurisdictions such as British Columbia, courts do not have the discretion to set aside or alter Wills simply because the immediate family members have been excluded or unfairly treated. So as long as your Will meets the criteria of a valid Will, it is enforceable.

Grounds to Challenge a Will

There are very specific and limited grounds that allow someone with a financial interest in the estate to make a successful Will challenge in Ontario such as:

1. Lack of Capacity - One of the primary grounds for challenging a will is the allegation that the testator (the person making the Will) lacked the mental capacity to understand the nature and consequences of their actions. This may be due to factors such as dementia, mental illness, or undue influence at the time of creating the Will.
2. Undue Influence - Will challenges may also arise if there are suspicions of undue influence exerted on the testator by a third party. This could involve coercion or manipulation, leading the testator to make decisions contrary to their true intentions.
3. Improper execution - Wills in Ontario must adhere to specific formalities outlined in the Succession Law Reform Act. If a Will is not properly executed, with the required number of witnesses and signatures, it may be subject to challenge.
4. Fraud - Allegations of fraud or forgery may be raised if there are concerns about the authenticity of the Will. This could include situations where someone forges the testator's signature or engages in deceptive practices during the creation of the Will.
5. Lack of clear intention – if the Will has clauses or provisions that may be unclear or ambiguous in order to determine what he or she really wanted to do with his or her estate, the Will may be subject to a challenge.

The onus lies on the party who is challenging the validity to prove how one or more of the grounds for the Will challenge are satisfied. Each case is determined based on the facts specific to the case, and are heavily dependent on the quality of evidence that the challenging party is able to provide.

Dependants and Married spouses

If the testator excludes individuals who you have an ongoing legal obligation to support financially, or someone who may have been financially dependent on you immediately before death, most commonly your spouse and your minor children, they would be able to make a claim against the estate for support.

“Dependants” who may make a claim against the Estate are specifically defined in the Succession Law Reform Act.

Married spouses are also an exception as they can elect to reject the Will and seek equalization under the Family Law Act.

So, while an adult child who is excluded from the estate plan, cannot successfully challenge a Will simply because they are unhappy about being disinherited, a married spouse who may not be happy about being excluded from your Will, can.

Will challenges in Ontario are complex legal matters that require a thorough understanding of the law and a careful examination of the circumstances surrounding the creation of the will. Although possible, successful Will challenges are extremely difficult and require a thorough understanding of the law and a careful examination of the circumstances surrounding the creation of the will.

Whether you are looking to have an estate plan put in place to ensure that your final wishes are upheld or wondering if you may be able to contest a Will, contact Apeksha Jain (ajain@sorbaralaw.com) to seek legal advice.