How to Challenge a Will in Ontario

Estate disputes are very common in Ontario, with the passing of a family member often leading to spouses and/or children disputing the contents of the deceased person’s will. To challenge a will in Ontario, it requires the guidance of an experienced estate litigation lawyer who can lead you through the process and explain the options available at each step. 

Before seeking to challenge a will, however, it is beneficial to first understand some of the basics involved in the process. Let’s take a brief look at these concepts below. 

The difference between wills, estates and trusts 

A will is a written document by a testator (the person making the will) that describes how their estate will be dealt with after they die, and it should appoint an executor who is responsible to carry out the instructions of the will.  

An estate is the entirety of the deceased person’s property (assets, liabilities, etc.) that they own at the time of their passing.  

A trust can come in many forms, and it is created to hold certain property or assets for the benefit of a specified person or persons (the beneficiaries) and is managed by a trustee. A trust can also operate while the owner of the trust is alive, whereas a will only comes in effect when the testator dies. 

Who can challenge a will in Ontario? 

It is important to know that each province in Canada has their own approach and their own laws regarding the challenging of wills. In Ontario, you can challenge a will if you have a financial interest in the estate.  

Spouses and dependents can make claims against the estate if they were financially dependent on the deceased or if the deceased had a legal or moral obligation to support them. 

What are the grounds for challenging a will? 

The courts will not set aside a will simply because interested parties are unhappy with it or deem it unfair, for example, if certain family members were left out altogether and received no inheritance. The position of the courts is that a validly made will should be enforced and the wishes of the testator should be respected and followed. That being said, wills in Ontario can be challenged on different grounds and the following are some that can be pursued: 

• Undue influence  
• Lack of capacity to make a will 
• Mistakes or noncompliance with formal requirements (unsigned, not properly witnessed) 
• Fraud 
• Lack of provision for spouse or dependants 
• Unclear testator intentions 

The onus to prove that a will is invalid rests with the individual who is challenging the validity of the will. The courts assume that the writer of the will was competent and of sound mind when they signed it, and to make a case proving otherwise requires evidence. 

Steps involved in challenging a will 

After engaging an experienced estate litigation lawyer, and determining that your objection to the will is worthwhile for the court to hear, court procedures must be initiated. This means filing a notice of objection, bringing a motion for the return of the certificate of appointment or an application to prove the will is in solemn form. Usually, a motion for directions will be required to set out the procedural steps of dealing with the will challenge. 

Courts in Ontario can examine the true intentions of the testator. It can obviously be very difficult, or impossible, to clearly ascertain the intentions of the deceased at the time that he or she was writing the will. 

The Notice of Objection 

Filing a Notice of Objection is, often, the first step in challenging the will. In the notice, the objector will detail the reason for their objection and the interest in the estate (i.e. I am the child of the deceased and a beneficiary under a previous will). If a notice is filed, the court will not process any applications for a certificate of appointment of estate trustee, until the objection is removed. 

Mental capacity 

Seeking the disclosure of medical records for the sake of determining testamentary capacity is an important step in estate litigation. Proving that the deceased understood what their estate contained and how it would be handled after death is an important factor in proving that the will was created when the individual had the required testamentary capacity. If records show otherwise, this is evidence that could be useful during a court proceeding to find the will invalid. 

It should be noted that simply demonstrating that a person had a cognitive impairment, such as Alzheimer’s or dementia, is not enough to prove that they lacked testamentary capacity when they drafted their will. 

Financial costs for challenging a will 

The judge always has the final say regarding costs during an estate dispute that ends up in court. Generally, the loser in the estate dispute ends up paying some of the winner’s legal costs. However, litigants should keep in mind that it is rare to get 100% recovery of their costs and that the judge can apportion costs as they see fit amongst the parties involved.  

Additionally, costs can be imposed on the person challenging the will if the judge deems the challenge to be frivolous or unworthy of the court’s time. 

Other costs to consider 

It is important to remember that commencing litigation, especially shortly after a loved one has passed away, can be an emotionally draining experience. Disputing the written wishes of a family member and entering into estate litigation against other beneficiaries can take a toll. The process is also time consuming and should be left in the hands of an experienced estate litigation lawyer who can efficiently work on your behalf and to ensure that your challenge is worthwhile and has the potential to succeed before initiating court proceedings. 

If you have any further questions regarding challenging a will in Ontario, or if you wish to talk to an experienced estate litigation lawyer to determine if you have reason to dispute the contents of a will, contact the Estate Litigation Team at Merovitz Potechin LLP. 

The content on this website is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship. If you would like to discuss your specific legal needs with us, please contact our office at 613-563-7544 and one of our lawyers will be happy to assist you.