What Happens If a Will Is Found to Be Invalid in Ontario?
What happens next depends on why the will fails and on what other valid will, if any, exists, so there is no single answer. A lawyer can confirm who inherits once the facts are known, because that outcome is not the same in every case.
Challenges are decided largely on who must prove what. The person putting forward the will has the legal burden of proving due execution, knowledge and approval, and testamentary capacity. Once due execution is proved, a rebuttable presumption puts an evidential burden on the challengers, and evidence of suspicious circumstances sends the legal burden back. Undue influence is different, because the burden stays on the people attacking the will.
A defect in signing is not always fatal, because the Superior Court of Justice may order an improperly executed document valid as the deceased's will if satisfied it sets out their testamentary intentions. Separately, if the deceased did not make adequate provision for the proper support of dependants, with or without a will, the court may order it made out of the estate.
Key takeaways
- Who inherits if a will is set aside depends on the facts, including whether another valid will exists, so a lawyer should confirm your situation.
- The person putting forward a will has the legal burden of proving due execution, knowledge and approval, and testamentary capacity.
- The burden of proving undue influence stays on the people attacking the will, and suspicious circumstances do not shift it.
- The Superior Court of Justice may order an improperly executed document valid as the deceased's will if it sets out the deceased's testamentary intentions.