Can You Challenge a Deathbed Change to a Will in Ontario?

A parent becomes seriously ill, and shortly before death a new will appears, often signed in a hospital or at home with only a few people present. It shifts the estate toward one child or another person. Other family members understandably ask whether it can stand.

Courts look closely at how a will was signed and whether the person understood what they were doing. This article explains the main questions in plain language.

Who has to prove the will is valid?

The party propounding a will, meaning the one asking the court to accept it, carries the legal burden of proving due execution, knowledge and approval of the contents, and testamentary capacity. Challengers can meet their initial evidential burden by pointing to suspicious circumstances that, if accepted, would tend to negative knowledge and approval or capacity. The legal burden then reverts to the propounder.

If the challenge is based on undue influence, the burden is on the party attacking the will. That is a different allocation from capacity and suspicious circumstances, so how the challenge is framed matters.

Capacity: what the person needed to understand

The Ontario test for capacity comes from a long-standing English case adopted by Canadian courts. The person making the will must understand the nature and effect of a will, the property being disposed of, and the claims to be given effect to. There must be no disorder of the mind that poisons affections, and no insane delusion influencing the disposition.

Where suspicious circumstances raise doubt about capacity, the person propounding the document must prove capacity on a balance of probabilities. How illness, medication or a hospital setting affected someone's capacity depends on the facts, so it is worth confirming with a lawyer. Medical records and the evidence of those present are often important.

Execution: how the will was signed

Proof of due execution in a contested case looks for two witnesses present at the same time who saw the person sign. In one Court of Appeal matter, the judge found insufficient evidence of compliance with formalities where only one interested person's uncorroborated evidence supported execution, and also noted probable lack of capacity and suspicious circumstances.

Who arranged the will, who was in the room, who benefited and whether the person had independent advice are all practical questions a lawyer will ask.

Filing an objection and what it does

A beneficiary can file a Notice of Objection (Form 75.1). Court staff then notify the applicant, who must send the objector a notice to objector (Form 75.3) and file it with an affidavit of service. The application for a certificate also requires the deceased's original will, if any. The current forms and steps are worth confirming with a lawyer or the court.

Because of a notice of objection, a court registrar cannot issue probate and an order from a judge is required. In that case, once the objection was withdrawn it ended the delay and complication it had caused. An estate trustee can bring a motion to test whether an objector has standing to keep pursuing objections where repeated objections delay administration.

• The filing fee for a notice of objection other than to accounts is $94.00.
• Where a child's interest is affected, the Office of the Children's Lawyer must be served in matters such as will challenges.
• Mandatory mediation under Rule 75.1 applies to specified estate proceedings, including claims against an estate.

Timing, costs and what to do next

There is no limitation period for a proceeding seeking only a declaration, such as that a will or codicils are valid or invalid, if no consequential relief is sought. If other relief is also sought, the two-year basic limitation period from discovery may be relevant. Do not rely on this being safe; ask a lawyer early.

Costs are governed by the ordinary civil costs regime, and come out of the estate only where public policy considerations apply, such as giving effect to valid wills of competent testators or ensuring estates are properly administered. In the Toronto Region Estates List, the traditional practice of awarding costs to all parties from the estate has been tempered by conduct and relative success.

• Write down who was present when the will was signed, and who the witnesses were.
• Ask for medical and hospital records, if you have a right to see them, to understand the person's condition.
• Keep earlier wills and any notes about the person's wishes.
• Do not sign anything agreeing to the will before getting advice.
• Speak with a lawyer about filing a notice of objection and the steps that follow.

Frequently asked questions