Can an Adult Child Be Disinherited in Ontario?

Finding out that a parent left you out of their will is painful, and it raises a practical question: is there anything you can do? Sometimes the answer is no, and sometimes there are real options.

This article walks through the main routes in Ontario: a support claim as a dependant, a challenge to the will itself, and a look at assets that pass outside the will. Each depends heavily on the facts, so a lawyer should review your situation early.

Being left out is not the same as having a claim

A parent can generally decide who receives their property, and a child who is left out must point to a legal reason to challenge that.

If there is no valid will at all, the rules for an intestacy decide who inherits instead, and children are among those who can share. So the first question is whether there is a valid will.

Support claims by dependants

The court can order support from the estate where the deceased did not make adequate provision for a dependant. A dependant is a spouse, parent, child or sibling the deceased was supporting. An adult child who was not being supported may not fit this definition, so the facts of your relationship matter.

The application must be made within six months after the grant of probate or administration. The court may allow an application at any time as to any part of the estate not yet distributed. For a support claim, non-estate assets are treated as part of the estate, including joint accounts, property held in joint tenancy, life insurance owned by the deceased and amounts payable under a beneficiary designation.

Challenging the will itself

Anyone who appears to have a financial interest in the estate may file a notice of objection (Form 75.1) at any time before a certificate of appointment of estate trustee is issued. A notice of objection expires three years after it is filed. The applicant serves a notice to objector, and if the objector does not serve a notice of appearance within 20 days, the application goes ahead as if no objection had been filed.

Before a court will order proof of a will, the person challenging must meet a minimal evidentiary threshold: some evidence which, if accepted, would call the will's validity into question. Common grounds include lack of capacity and undue influence.

• Capacity: the person making the will must understand the nature and effect of a will, recollect the nature and extent of their property, and understand what they are giving. They must also remember the people they might be expected to benefit. It is an error to infer lack of capacity from alcohol or drug use alone.
• Burden of proof: the person putting forward the will has the legal burden on due execution, knowledge and approval, and testamentary capacity, and suspicious circumstances shift the burden back to them. Whoever alleges undue influence must prove it.
• Formal defects: whether a court can save a will that was not properly signed depends on your situation, including when the person died, so it is worth confirming with a lawyer.
• Time limits: the basic limitation period is two years from the day the claim was discovered, and a will challenge brought more than two years after the death, with no discoverability issue, has been held to be statute-barred.

Assets outside the will

Some assets pass outside the estate, by joint ownership with survivorship or to a designated beneficiary. A person may designate a beneficiary of a plan such as an RRSP, RRIF or pension by a signed instrument or by will.

A gratuitous transfer from a parent to an adult child, including into a joint account, is presumed to be held on a resulting trust for the parent's estate, and that presumption can be rebutted by evidence that the parent intended a gift. For a minor child, the starting point is the presumption of advancement, which is a gift. Courts weigh later statements of intention, the wording of the bank documents, who controlled and used the funds, any power of attorney, and how the account was treated for tax.

What to do next

• Find out whether probate has been granted and note the date.
• Collect any copies of wills, account statements and beneficiary forms you can lawfully obtain.
• Write down your relationship with your parent, including any financial support you received.
• Do not delay: the support deadline is short and will challenges face time limits.
• Speak to a lawyer about which route, if any, fits your facts.

Frequently asked questions