Challenging And Defending A Will That Disinherits A Child

If a person dies intestate, the legislation directs that their estate will be payable to their spouse and/or their children.¹ This principle of usual or natural bequests is also considered at common law when assessing capacity, i.e. whether the deceased understood who would reasonably expect to share in the estate.² Even so, people retain the right to depart from this proclivity and they often do.

Being cut out of a will is not, on its own, enough to successfully challenge a will. There needs to be other indicia that support findings of a lack of capacity, lack of knowledge and approval, and/or undue influence. While not determinative or exhaustive, a court should consider the following in assessing the suspicious circumstances surrounding the making of a will: