A claim of lack of capacity is a common reason wills are challenged and it can lead to a lengthy and costly legal process, says Toronto wills and estates lawyer Matthew Urback.

“It can sometimes be hard to prove a lack of capacity because everyone is assumed to have it regardless of their age,” says Urback, an associate with Shibley Righton LLP.

“The person making the challenge has to substantiate that allegation and it can be difficult to do,” he tells AdvocateDaily.com.

The reason it can be so tough to establish a lack of capacity is that the party making the challenge has to go back in time, Urback explains.

“The individual who made the will isn’t around anymore,” he says.

It’s challenging to prove something debatable, Urback says, and that’s when you see litigation and a drawn-out dispute.

Usually at the beginning of court proceedings, the party filing the challenge will seek an order to access mental and legal records, Urback says.

“It’s obtained early because if there is nothing in the medical records, that will quickly impact whether you have any evidence to go forward with.”

However, it isn’t always an easy or fast process, he cautions.

“You could be going back years and looking at a paper trail to determine the individual’s capacity.”

Urback says there are plenty of reasons for 11th-hour changes to one’s will.

“Many people re-visit their decisions in order to minimize tax or to look at charitable giving. It’s not necessarily because someone is tugging at their sleeve to update the will and include them,” he says.

If changes are desired, Urback says lawyers should question whether to act if they can’t get instructions because of the person's incapacity.

“Lawyers can send a client to a capacity assessment, which is usually performed by a health-care professional or social worker,” he says. “It’s a difficult exercise because clients can have bad days and good days when it comes to coherence.”

Urback says undue influence is another common reason wills are challenged.

“In this case, there’s a claim by an objector who doesn’t believe the will reflects the true intentions of the individual.”

He says there’s nothing wrong with someone trying a little bit of persuasion — or even begging — but it has to rise to a level of coercion.

Urback says undue influence claims frequently involve a person who has been close to the individual because a level of trust has been created.

If someone is challenging a will based on undue influence, it’s usually because they have been excluded or minimized in an updated version, he says. “The argument is that the will isn’t valid because it doesn’t reflect the drafter's true wishes.”

Urback predicts the number of will challenges will likely rise in coming years as the population ages.

“Based on demographics, seniors will make up a larger proportion of the populace,” he says. “Due to numbers alone, we’ll see an increasing number of these cases.”