Can an Adult Child Sue for Being Left Out of a Will in Ontario?

Finding out that a parent left you nothing, or far less than a sibling, is painful. It also raises a practical question: does the law give an adult child any right to a share, and if not, what can you realistically do?

In Ontario the starting point is that people may choose who inherits. There are still some limited routes: a support claim in narrow circumstances, a challenge to the will itself, and claims about property that was moved before death. This article explains each in plain terms.

No automatic right to inherit as an adult child

The Court of Appeal for Ontario has held that there is no statutory duty on a competent testator to provide in a will for an adult, independent child. Ontario law lets testators exclude children who are not dependants.

Freedom to choose beneficiaries is not unlimited. It is limited by legislation and public policy, and courts will void offending testamentary conditions on public policy grounds, but they will not go behind a testator's clear, unconditional choice of beneficiaries. In practice, a will that seems unfair or hurtful is not, by itself, a reason for a court to set it aside.

The dependant support claim

Under Part V of the Succession Law Reform Act, if a deceased person, with or without a will, has not made adequate provision for the proper support of their dependants, the court may order that adequate provision be made out of the estate. The Act defines a dependant as the deceased's spouse, parent, child, or brother or sister to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before death.

That definition is where most adult children run into trouble. Adult independent children are not entitled to dependant's relief, and an adult child can claim support only if the deceased was supporting them, or was legally obliged to, immediately before death. A child who relied on a parent because of illness or disability may fall within the definition, but that depends on the facts.

• The court sets the amount and duration of support by considering all the circumstances, including the dependant's age and health, the assets and means the dependant is likely to have in the future, and the claims of other dependants.
• The dependant, or the dependant's parent, may apply.
• A court can make a support order even if the dependant signed an agreement or waiver saying otherwise.

Challenging the will itself

A different route is to argue that the will is not valid. This is not about fairness. It is about whether the document is the genuine, informed choice of the person who made it. The usual grounds are set out below.

Undue influence in a will means outright and overpowering coercion of the person making it, and the challenger must prove it on a balance of probabilities. The presumption of undue influence that can apply to lifetime transactions does not apply to wills.

Before the court will require a will to be formally proved, a challenger must adduce, or point to, some evidence that, if accepted, would call its validity into question, which is a minimal threshold.

Claims about property moved before death

Sometimes the real issue is not the will but an account or property that passed outside it. When a parent gratuitously transfers property, including into joint names, to an adult child, the law presumes the child holds it on resulting trust for the parent, and so for the parent's estate, and the child bears the burden of rebutting that presumption. The question is the parent's actual intention at the time of the transfer, and a court may consider evidence of the parent's conduct afterwards.

Even if the presumption is rebutted, the survivor does not always keep the money. In one Court of Appeal case the presumption was rebutted, but the sons were found to hold the joint-account funds under an obligation to share them equally among all five children. Different rules apply between spouses.

Some children also claim that years of unpaid care or work for a parent should be repaid. Unjust enrichment requires proof of an enrichment, a corresponding deprivation, and no juristic reason for the enrichment. For services, a fee-for-service money award is the default remedy and a constructive trust is exceptional.

Deadlines to watch

A dependant support application may not be made more than six months after the grant of letters probate of the will or of letters of administration. The court may allow a late application, but only against any portion of the estate still undistributed on the date of the application.

Most other claims must be started within two years after the day the claim was discovered, which is the earlier of when you actually knew or when a reasonable person in your position ought to have known. That two-year period does not run while the claimant is incapable of starting a proceeding because of a physical, mental or psychological condition and has no litigation guardian. Claims by or against an estate for torts or injuries, other than libel and slander, must be started within two years of the death. Which deadline applies to a given claim varies, so confirm it early.

What to do next

• Get a copy of the will and find out the date a certificate or grant was issued, since the six-month support deadline runs from the grant.
• Write down who supported whom, and how, in the period before death.
• Collect records of any joint accounts, transfers or caregiving.
• Do not assume the estate will wait: once a personal representative is served with notice of a support application, they must not distribute the estate until the court has dealt with it, unless everyone entitled to apply consents or the court orders otherwise.
• Speak with an Ontario estates lawyer promptly, before deadlines pass.

Frequently asked questions