How long do I have to contest, challenge or dispute a will in Ontario?

couple with lawyer discussing how long do you have to contest a will

Disclaimer: This article discusses wills.  It is intended for the purposes of providing information only and 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.

In the wake of your grief, a legal battle may be the furthest thing from your mind. However, as time passes, you may begin to feel that you have legitimate grounds to challenge or contest a will. Can you still do so? Or is it too late?

How long do I have to contest a will in Ontario? 

In Ontario, as in most other provinces, there’s typically a two-year limit to file a complaint, governed by the Limitations Act. This is the same limitation period that applies to other litigation. 

However, the important thing to note is that this period doesn’t begin from the date of the individual’s death. Instead, it starts from the date when reasonable grounds for contesting the will were uncovered. This often coincides with when individuals become aware of the will’s contents and its implications. (Although we’ll see how this was handled by a recent court decision). 

If, years later, you uncover that the executor intentionally withheld information or acted dishonestly regarding the will, you still have the opportunity to challenge it within two years of discovering this information.

Recent estate case law: Shannon v. Hrabovsky

While it seems pretty straightforward, the question arises, when does the two-year period begin? 

This was the question raised by Shannon v. Hrabovsky

The testator (Andrew Hrabovsky) had prepared various wills in his lifetime. The most recent one – prepared in 2007 – disinherited his daughter, Gayle Shannon. This was the last will that Andrew prepared before he died in November 2014. While Gayle learned of the existence of the will on December 14, 2014, she did not receive a copy of the will until January 2015. 

Gayle contested the will on December 23, 2016. The estate opposed her challenge, stating that she had filed it more than two years after her father’s death. 

The question before the courts: when did the limitation period begin? Did it start when Gayle learned of the existence of the will on December 14, 2015, or in January 2015, when she actually received a copy of the will? 

The courts discussed section 5 of the Limitations Act, which states that the limitation period begins when the party bringing forward a claim ought to have known the nature of their loss. While Gayle knew that the 2007 will existed in December 2014, the courts ruled that she did not know the nature of the loss until she received the will in January 2015. It referred to the principle set out by the Supreme Court of Canada in Grant Thornton LLP v. New Brunswick, 2021 SCC 31 – that “the degree of knowledge needed to discover a claim is more than mere suspicion or speculation.”  

Therefore, Gayle did bring her application within the two-year time period allowed. 

Common grounds for contesting a will in Canada

Claims can be brought by a beneficiary, a dependent or someone else with a financial interest in the estate. However, it is not enough to simply be unhappy with your inheritance as grounds for challenging the validity of a will. There are specific legitimate claims to challenge a will in Canada. We discussed it in detail here, but let’s summarize the two most common reasons that a will may be found to be invalid. 

Undue influence

Undue influence happens when someone manipulates, pressures or tricks (unduly influences) a person into making unfair decisions about their will. We see this most often with elderly individuals living alone. The court may consider factors such as unequal relationships with influencers, such as caregivers. If you think this happened, challenging the will in court might be the right step.

Lack of testamentary capacity (mental capacity)  

If someone making a will doesn’t fully understand what they’re signing or how it affects their beneficiaries due to their mental capacity, the will’s validity may be questioned. An interested party can challenge a will if the person making the will (the testator) could not grasp what they were signing, what it meant for their beneficiaries, or how others might interpret it at the time of signing.

Beeksma Law: Your estate lawyer for all of your estate law needs

For all wills and estates matters, contact our team at Beeksma Law for legal advice. 

Whether you’re contesting a will, facing a challenge as an estate trustee, or in need of crafting an estate plan, our expertise can provide valuable guidance. Beeksma Law’s experienced estate litigation lawyers understand the complexities of Ontario’s laws and can assist with filing notices, understanding grounds for challenges, and navigating legal proceedings. 

From preparing a will to probate to providing the validity of a will, consulting our team at Beeksma Law can provide clarity on your legal rights and options. We can advise on the potential legal costs involved and the burden of proof required.

With our assistance, you can better understand your position, protect your interests, and ensure your loved one’s estate is properly administered. Contact us today to get started.

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