How to contest (or challenge) a will in Ontario?

Disclaimer: This article on challenging a will is intended for the purposes of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Estate disputes are becoming increasingly common, as family members wish to challenge the contents of their deceased relative’s will for a number of reasons.

If that’s the case, can you challenge a will? Who has the right to do so? What are the different grounds for contesting or challenging a will? These are the questions that we will answer in this article.

At Beeksma Law, we are passionate about estate law. From creating clear, complete estate documentation to helping you navigate any legal issues following a death, we are here to help.

Who can challenge a will in Ontario?

In the province of Ontario, only certain individuals have the right to challenge a will. We call these individuals “interested parties.” Under Ontario’s Succession Law Reform Act (SLRA), interested parties are those who “appear to have a financial interest” in the estate. This could mean those who would be beneficiaries under the intestacy provisions of the Act if there were no will, or anyone else who can demonstrate that they were financially dependent on the deceased.

Typically, challenges are brought by children, grandchildren, spouses, siblings and other close relatives.

What are common grounds for challenging a will?

The court will not invalidate a will that treats you unfairly or if you do not receive what you felt entitled to inherit. Simply put, there is no legal requirement to be nice or to share an estate equally. It’s also important to note that the onus is on the person bringing forward a challenge to prove that the will is invalid. This means that the courts will assume that the will is fine and it is up to you to convince them otherwise.

However, you could successfully challenge a will under a few grounds. Let’s consider some of those.

Lack of Capacity

The law requires that someone making a will knows and understands the impact of what they are signing. Because of someone’s capacity, someone may question the validity of a will. Therefore, an interested party may challenge a will if the testator (the person making the will) did not have the mental capacity to understand:

• what they were signing;
• what it meant for their beneficiaries; and
• how another party was likely to interpret the will at the moment that the testator reviewed and signed the will.

This is particularly important – you must prove that the testator lacked capacity at the time of signing. There is a principle in law called a “lucid interval”. This means that while a person may struggle with cognitive function, they can still have lucid intervals where they can reason and make decisions. If that is the case, then a will made during this period could be valid.

Undue Influence

Undue influence is another common ground for contesting wills. This is when an individual forces, coerces or manipulates the testator into making decisions that were not in their best interests. This could be by another family member, a caregiver, or even a lawyer or other professional involved in the drafting of the will.

The court can consider factors such as whether the will benefited anyone too highly in a disproportionate way. It can also consider whether the testator was influenced by someone they had an unequal relationship with (such as a caregiver).

We typically see this among elderly people who live alone. A “new friend”, caregiver or one of their adult children may take advantage of their relationship with that person to try to influence their decisions in order to benefit from their will or powers of attorney.

If you believe that any of these conditions have been present, then a court challenge might be the right course of action for your case.

Changed Circumstances

We noted the example of actor Heath Ledger in an earlier article. He created a will, but did not update it after the birth of his daughter.

In some circumstances, an interested party can challenge a will if there is evidence that the testator did not update it to reflect changes in their circumstances. Those circumstances must be so noteworthy that the will no longer reflect the testator’s true wishes (i.e. to care for their children).

Fraud or Forgery

It is possible to challenge a will if there is evidence that someone forged or altered it in any way. It is also possible to challenge a will if someone fraudulently obtained the signature of the testator.

Contesting a Will in Ontario

Challenging a will in Ontario involves a few steps. First, you need to file a Notice of Objection. This is where you explain why you’re objecting to the will and state your interest in the estate (like being the child of the deceased and a beneficiary in a prior will). When you file this notice, the court will not move forward with any applications for the appointment of an estate trustee (or executor) until the objection is resolved.

What if an estate trustee has already been appointed? Then, you will have to file a motion demanding the return of the Certificate to the court.

Courts in Ontario can try to determine what the person who made the will (the testator) truly intended. Figuring out their intentions can be tough, especially if they’re no longer around to explain.

Challenging a will is a serious legal matter, and getting the process right is essential to protect your interests.

When You need to Contest a Will in Ontario, Contact Beeksma Law 

At Beeksma Law, we are experienced in dealing with will disputes and can help you through the process. We understand that this is a difficult time for families. Our team of estate lawyers balances compassion with professionalism to be your guide and advisor through this process. If you would like to discuss your case further or any of your estate planning needs, please do not hesitate to contact us today. We are here to help!