Contesting a Will in Nova Scotia: Grounds, Dependant Relief, and the Testators' Family Maintenance Act

Most Nova Scotia wills are straightforward documents that carry out the deceased's intentions without dispute. But in a meaningful number of estates, family members find themselves questioning whether the will is valid, whether they were adequately provided for, or whether they have any rights at all. The answers depend on the grounds being raised and the relationship to the deceased.

Here is what you need to know about challenging a will in Nova Scotia, making a dependant relief claim, and what the Testators' Family Maintenance Act actually provides.

Grounds to Challenge a Will's Validity

Contesting a will on the grounds that it is invalid is different from claiming you were not adequately provided for. A validity challenge argues that the document itself should not be treated as a valid legal will.

The main grounds for challenging a will's validity in Nova Scotia:

Lack of testamentary capacity. The testator must have understood the nature of making a will, the extent of their assets, who their natural beneficiaries were, and how the will distributed the estate among those people. If the deceased suffered from dementia, mental illness, or was under the influence of substances at the time they signed, a capacity challenge may have merit. Medical records from around the time the will was made are central evidence.

Undue influence. The testator must have made the will freely, without being coerced or manipulated by another person into making certain provisions. Proving undue influence is difficult — courts require evidence that the testator's free will was overborne, not simply that someone expressed strong opinions or requests.

Improper execution. Nova Scotia requires a will to be in writing, signed by the testator (or by someone at their direction if they cannot sign), and witnessed by two witnesses present at the same time. If these formalities were not followed, the will may be invalid. The court has some discretion to validate wills that do not strictly comply, but significant deviations create real risk.

Fraud or forgery. If the document itself is fabricated, or if the testator was deceived about what they were signing, that is fraud — separate from undue influence.

Challenging a will on these grounds requires legal action through the Nova Scotia courts. If the challenge succeeds, the will (or the challenged portion) is set aside, and the estate either falls to a prior valid will or to the intestacy rules.

The Testators' Family Maintenance Act: Dependant Relief Claims

Nova Scotia's Testators' Family Maintenance Act provides a separate remedy for individuals who were dependants of the deceased and were not adequately provided for in the will. This claim does not invalidate the will — it asks the court to vary the distribution to ensure adequate provision.

Who qualifies as a dependant?

The Act covers:

• A legally married spouse
• A child of the deceased
• In some circumstances, other individuals who were substantially dependent on the deceased

Crucially, unregistered common-law partners are not automatically included. A person who lived with the deceased as a common-law partner but never formally registered a domestic partnership with Nova Scotia Vital Statistics has no automatic right to claim under the Intestate Succession Act if there is no will, and faces a more difficult legal argument for dependant support. If you are in this situation, consult an estate litigation lawyer immediately.

What the court considers:

The court assesses whether the will made adequate provision for the dependant's maintenance and support, taking into account:

• The financial needs of the claimant
• The size and nature of the estate
• The testator's reasons for their distribution choices (if documented)
• The claimant's relationship with the deceased
• Other resources available to the claimant

The court does not simply rewrite the will to give the claimant more money. It asks whether the provision made was adequate in light of the moral obligations a testator has to their dependants.

Deadlines: There is a time limit for bringing a Testators' Family Maintenance Act claim. Do not delay in seeking legal advice if you believe you have a claim — missing the limitation period extinguishes your rights entirely.

Common-Law Partners and Intestacy: A Separate Problem

When a person dies without a will in Nova Scotia, the Intestate Succession Act governs who inherits. The Act distributes the estate to the spouse, children, parents, and siblings — in a defined hierarchy.

An unregistered common-law partner receives nothing under this hierarchy. Nova Scotia's Intestate Succession Act explicitly excludes common-law partners unless they registered their relationship as a domestic partnership under the Vital Statistics Act. This is one of the most significant gaps in Nova Scotia estate law — and it surprises many families.

The statutory hierarchy for intestate estates with a surviving spouse and children: the spouse receives the first $50,000 (the "preferential share") plus a portion of the residue, with the remainder divided among the children. Stepchildren and unadopted grandchildren are excluded.

If the surviving partner was unregistered and common-law, their options are:

1. A dependant support claim under the Testators' Family Maintenance Act (even in intestacy — the court can vary the distribution)
2. A constructive trust or unjust enrichment claim if they contributed to the estate's assets and were not compensated
3. A claim as a co-owner of jointly held property that predates the death

All of these require legal representation. They are not DIY processes.

What to Do If You Are Considering a Challenge

Act quickly. Limitation periods apply. Probate court proceedings take time, and the executor will be administering the estate while a challenge is pending.

Get legal advice before the estate is distributed. Once assets have been distributed to beneficiaries, recovering them is significantly harder. If you believe a claim exists, notify the executor in writing and consult an estate litigation lawyer before distribution occurs.

Document everything. If your claim involves capacity or undue influence, you need evidence — medical records, communications, witness accounts of the deceased's condition or circumstances when the will was signed.

Consider the cost. Estate litigation is expensive. An unsuccessful challenge may result in the challenger paying a portion of the estate's legal costs. A realistic assessment with a lawyer of your chances before proceeding is worth the consultation fee.

What the Executor Should Do When Faced With a Challenge

An executor who learns that a beneficiary or family member is challenging the will should not distribute any assets until the challenge is resolved. Distributing while a claim is active exposes the executor to personal liability. Seek legal advice immediately and document all communications.

The Nova Scotia Estate Settlement Guide covers executor duties during disputes, when to pause distribution, and the full context of intestacy rules — including the common-law partner gap and the preferential share calculation — so executors and family members understand where formal legal advice is genuinely necessary versus where they can proceed independently.

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