Contesting a Will in Nova Scotia

When a loved one dies and their Will does not reflect what family members expected, the question of whether to challenge it sometimes arises. Contesting a Will is a serious legal step — one that requires proper grounds, legal standing, and an application to court. This article explains how the process works in Nova Scotia, what valid grounds exist, and what you can do to reduce the risk of a challenge to your own Will.

Who Can Contest a Will?

Not everyone who disagrees with a Will has the legal right to challenge it. In Nova Scotia, only a person with legal standing can bring an application to contest a Will. Standing generally exists for:

• Beneficiaries named in the current Will
• Beneficiaries named in an earlier Will who would have received more under that document
• People who would inherit under the intestacy rules if the Will were found invalid (typically a spouse or children)
• Creditors of the estate in limited circumstances

Being a family member — even a close one — does not automatically give you standing. An adult child who is excluded from a Will but who would not have inherited on intestacy may face a standing challenge before their substantive application is even heard.

Note: These standing rules apply specifically to challenges to the Will's validity. A dependent spouse or child who feels inadequately provided for has a separate remedy — an application under the Testators' Family Maintenance Act — which does not require them to attack the validity of the Will at all. That remedy is discussed below.

Valid Grounds for Contesting a Will

Unhappiness with the contents of a Will is not a legal ground for contesting it. Nova Scotia courts recognize the principle of testamentary freedom — the right of a competent adult to dispose of their estate as they see fit, even if those choices seem unfair to others. To succeed in a challenge, you must establish one or more of the following grounds.

Lack of Testamentary Capacity

A valid Will requires the Testator (the person making the Will) to have legal capacity at the time of signing. This means understanding:

• The nature and effect of making a Will
• The general extent of their assets
• Who their natural heirs are
• That they are making a Will and what it means

A diagnosis of dementia does not automatically mean capacity is lacking — the relevant question is capacity at the specific time the Will was signed. People with dementia often have periods of lucidity. Conversely, a Will signed during an acute medical crisis or period of severe cognitive decline may be challenged on this basis.

Undue Influence

Undue influence means that another person coerced, pressured, or manipulated the Testator into making Will provisions they would not otherwise have made. This is one of the most frequently alleged grounds — and one of the most difficult to prove.

The influence must be more than persuasion, encouragement, or even persistent requests. It must amount to a form of coercion that overpowers the Testator's free will. Courts are careful to distinguish genuine undue influence from the natural influence that trusted family members exercise over one another. The fact that a caregiver receives a generous bequest, standing alone, is not sufficient.

Fraud or Forgery

A Will obtained through fraudulent misrepresentation — for example, by deceiving the Testator about the contents of the document they were signing — is invalid. A forged Will is void. These are serious allegations and courts require clear evidence before entertaining them.

Failure to Meet Formal Requirements

Nova Scotia's Wills Act sets out specific requirements for a valid Will: it must be in writing, signed by the Testator at the end, and witnessed by two independent witnesses who are both present at the same time and who both sign in the Testator's presence. A beneficiary — or the spouse of a beneficiary — cannot serve as a witness without rendering the gift to that person void.

A Will that fails to meet these requirements is invalid regardless of what the Testator intended.

What Contesting a Will Does Not Cover

It is important to understand what a Will challenge is not. If the Will is validly made, the fact that it is perceived as unfair — even grossly unfair — is not a ground for setting it aside. A parent may disinherit an adult child for any reason or no reason at all, provided they had capacity and acted freely.

There is a separate remedy for a dependent spouse or dependent child who has not been adequately provided for: an application for dependants' relief under the Testators' Family Maintenance Act. This is not a challenge to the Will's validity — it is an application asking the court to vary the distribution to provide for someone the Testator was obligated to support. This remedy is available even where the Will is perfectly valid.

The Process for Contesting a Will

A Will challenge is initiated by filing a Notice of Objection with the Nova Scotia Supreme Court (Probate Division) before or during the probate process. The court will set a hearing, and the matter will proceed through the court system, potentially including examinations for discovery and a trial.

Will challenges are expensive and emotionally exhausting for everyone involved. Legal costs on both sides can quickly exceed the value of the benefit being disputed. Experienced legal counsel is essential for anyone considering this route — both to assess whether a challenge has merit and to navigate the procedural steps involved.

Reducing the Risk of a Challenge to Your Own Will

If you are concerned that your own Will might be challenged after your death, there are practical steps you can take at the time of drafting and signing.

Ensure proper execution. A Will prepared and executed with a Notary public, with a notarized Affidavit of Execution, is less vulnerable to formal challenges than one prepared informally. The execution process itself provides evidence of compliance with the Wills Act.

Document your capacity. If there is any reason to question your capacity — a recent diagnosis, a significant health event, advancing age — a contemporaneous letter from your physician confirming your capacity at the time the Will was prepared can be powerful evidence if a challenge ever arises.

Explain your reasoning. If you are making an unusual distribution — disinheriting an adult child, leaving an unequal division among siblings, or making a significant gift to a non-family member — a private letter of wishes kept with your Will can explain your reasoning. This letter is not legally binding, but it provides context that makes a challenge harder to sustain.

Sign independently. Where possible, have your Will prepared and signed at a time and place independent of the person who stands to benefit most. This helps rebut any suggestion of undue influence.

Review and update your Will regularly. A Will that reflects your current circumstances and relationships is easier to defend. Wills that are decades old and no longer reflect the Testator's life often attract more scrutiny.