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Will Challenge – Estate Litigation 4/9

A will is a legally binding document that dictates how a person’s assets are to be distributed after death. However, not every will meets legal standards. Some may have been created under undue influence, while others may fail to comply with Ontario’s legal formalities. In some cases, a will might even be forged or fraudulent.

If you believe that a will does not accurately reflect the deceased’s true wishes, you may have legal grounds to challenge it. However, acting quickly is critical, as estate trustees can start distributing assets as soon as probate is granted, or even earlier if no probate is required.

Legal Grounds for Challenging a Will

Ontario law allows a will to be challenged only if there are valid legal grounds. Courts do not entertain will challenges simply because a beneficiary dislikes the terms or feels they were treated unfairly. Instead, challenges must be based on specific legal reasons, such as:

A person making a will (the testator) must have had mental capacity at the time the will was signed. This means they must have:

  • Understood that they were making a will.
  • Been aware of the nature and value of their assets.
  • Recognized who their beneficiaries were and any moral obligations to family members.
  • Not suffered from a cognitive condition, such as dementia, that impaired their judgment.

If there is evidence that the testator did not understand these aspects, the will could be ruled invalid. However, the burden of proof is on the person challenging the will to show that the testator lacked capacity.

Even if the testator was mentally competent, they must have known and approved the contents of the will. If a will was prepared in suspicious circumstances, such as being drafted by a new beneficiary or signed under questionable conditions, courts will scrutinize whether the testator truly understood what they were signing.

A will must be made freely, without coercion or manipulation. However, proving undue influence is extremely difficult because the challenger was not present when the will was prepared or signed.

Ontario courts require strong evidence to invalidate a will on the basis of undue influence. Simply showing that a testator relied on a specific person for care or was isolated from other family members is not enough. The person contesting the will must prove that coercion took place, such as by demonstrating:

  • The testator’s decision-making ability was impaired.
  • The influencer actively pressured the testator.
  • The will makes an unnatural or unexplained departure from previous versions.

If a will is significantly different from past versions, this could raise suspicion, but courts will still require direct evidence of undue influence before invalidating it.

A will must comply with the formal requirements set out in the Succession Law Reform Act (SLRA), including:

  • Being in writing.
  • Being signed by the testator.
  • Being witnessed by two people who are not beneficiaries.

Previously, failure to meet these requirements was a strong basis for invalidating a will. However, in 2021, Ontario introduced s.21.1 of the SLRA, which allows courts to validate wills that do not comply with formal execution requirements if they are satisfied that the document reflects the testator’s intentions.

This means that even if a will was not properly signed or witnessed, courts now have the power to declare it valid, making challenges under this ground more difficult than before. For more detailes please refer to SLRA s.21.1 Recent Jurisprudence.

A will may be challenged if:

  • The testator’s signature was forged.
  • The will was altered after being signed.
  • Someone misrepresented facts to the testator, leading them to make certain decisions.

Challenging a will based on fraud requires clear and convincing evidence, such as expert handwriting analysis or witness testimony.

Courts carefully examine cases where suspicious circumstances suggest the will may not reflect the testator’s true wishes. Some red flags include:

  • The testator was elderly, ill, or heavily medicated when the will was made.
  • The will was drafted by someone who benefits from it.
  • The testator was isolated and had little contact with other family members.

While suspicious circumstances alone do not invalidate a will, they can shift the burden of proof to the person defending the will, requiring them to demonstrate its validity.

When Can a Will Be Challenged?

  • Challenging a Will Before Probate
    • If probate has not yet been granted, the person contesting the will can file a Notice of Objection with the court. This prevents the estate trustee from obtaining probate until the challenge is resolved.
  • Challenging a Will After Probate
    • If the probate certificate has already been issued, the objector must file a motion to return the certificate, effectively revoking the estate trustee’s authority to act.

It is crucial to act as soon as possible if you intend to challenge a will, because:

  • Once probate is granted, the estate trustee can start distributing assets, including to themselves if they are a beneficiary.
  • Some estates do not require probate, meaning the trustee can distribute assets without any court oversight, leaving no public record of the estate’s administration.
  • Strict limitation periods apply, meaning that waiting too long could eliminate your right to challenge the will entirely.

Process of Challenging a Will

If a will has not been submitted for probate, or is being submitted for probate, the estate trustee (executor) applies for a Certificate of Appointment of Estate Trustee. This certificate serves two purposes:

  1. Confirms the will’s validity
  2. Authorizes the estate trustee to manage the deceased’s assets

If you oppose the probate and want to challenge the will, the first thing you must do is file a Notice of Objection to stop the estate trustee from obtaining this certificate, per Rule 75.03 & Court Form 75.1, this is to:

  • puts the probate process on hold
  • effective for 3 years from the date of filing
  • requires notice to be sent to all beneficiaries

Responding to the objection:
Once an objection is filed, the estate trustee or beneficiaries must respond within 20 days by filing a Notice of Appearance. After that, within 30 days, a motion for directions must be made to the court, setting out the next steps in the will challenge.

If the estate trustee has already obtained the probate certificate, the objector must move to ask the court to revoke it.

Upon adequate evidence, the court can order the estate trustee to return the certificate, this order can be obtained without notice by filing:

  • A draft order
  • An affidavit outlining the objector’s interest and grounds for challenge

Once the certificate is returned, the will challenge proceeds in court.

Once a will challenge is underway, the court supervises the entire process to ensure fairness, including motion for direction and order giving directions. Normally, within 30 days of receiving a Notice of Appearance, the court will define the issues in dispute and identify the parties involved.

In some cases, the court may order a Statement of Claim by using Ontario Court Form 75.7 to be filed, requiring the objector (plaintiff) to formally sue those who support the will. The defendants can then respond with a Statement of Defence as in common civil litigation procedures.

  • The estate trustee must apply to the court for directions on how the dispute will proceed.
  • The court will define legal issues, confirm parties involved, and determine procedural steps, e.g., discovery, mediation, etc.

If the will challenge is expected to take time, the court can appoint a neutral trustee to manage the estate during the dispute, which is called “Estate Trustee During Litigation (“ETDL”)

⚠️ This ETDL ensures estate assets are preserved but cannot distribute assets until the case is resolved.

  • If the dispute is not settled, the court will conduct a trial to determine the validity of the will.
  • The court can declare the will invalid, reinstate a previous will, or apply intestacy laws (if no prior valid will exists).

Special Considerations

Yes. A person with an interest in the estate can submit their “person’s right” to the court, meaning:

  • They are not actively involved in the lawsuit.
  • They must receive written notice of trial dates and judgment.
  • Their consent is required for any settlement agreement.

All these allow a person to monitor the proceedings without being responsible for legal costs.

An objector can ask the court for orders of assistance, which may include:

  • Forcing the estate trustee to pass accounts
  • Requiring a statement of estate assets
  • Compelling the estate trustee to clarify their role

These motions are typically filed without notice and require affidavit evidence.

If the original will is lost or destroyed, the court may accept a copy only if all interested parties agree to its validity, plus there is strong evidence confirming its authenticity. This means the court may still approve a “copy” with affidavit evidence if all parties agree.

If no valid copy exists, the estate may be distributed based on a previous will or Ontario’s intestacy laws.

Final Important Note

Challenging a will is a serious step, but it’s sometimes necessary to ensure fairness and protect your rights. This blog is for informational purposes only and does not constitute legal advice, so if you find yourself in any of the relevant situations, timely consulting an estate lawyer is essential.