Challenging a Will for Lack of Testamentary Capacity in Ontario

You may believe that a parent or relative could not understand what they were signing when their will was made, perhaps because of dementia, a stroke or a serious illness. That belief is common, and it is a different question from whether the person was simply unwell, forgetful or made choices you find unfair.

This article explains, in general terms, how Ontario courts approach a capacity challenge: the legal test, who has to prove what, the early steps that protect your position, and how contested estates move through court. Every case turns on its own facts, so a lawyer can confirm how this applies to yours.

What testamentary capacity means

Testamentary capacity is the mental ability needed to make a valid will. The Court of Appeal for Ontario has restated the long-standing test from Banks v. Goodfellow as a requirement of a sound disposing mind.

In practice, the person making the will needs to have understood several things at the time the will was made:

• The nature and effect of making a will.
• The nature and extent of their property.
• What they were giving to each person.
• The people they might be expected to benefit.
• Where it applies, the claims of people they were excluding.

A diagnosis alone does not answer the question. The focus is on the person's understanding when the will was made, which is why medical records, notes from the lawyer who prepared the will and accounts from people who saw the person around that time often matter.

Who has to prove what

The person putting forward the will, called the propounder, has the legal burden of proving three things: due execution of the will, that the person knew and approved of its contents, and that they had testamentary capacity.

Once proper execution is proved, the law presumes knowledge, approval and capacity. That puts an evidential burden on the people challenging the will. If the challengers introduce evidence of suspicious circumstances, the legal burden goes back to the propounder.

What counts as suspicious circumstances depends on the facts, and a lawyer can tell you whether your evidence is likely to be enough.

How this differs from undue influence

Capacity and undue influence are often argued together, but they work differently. For undue influence, the burden of proof stays on the people attacking the will, and suspicious circumstances do not shift it.

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

Early steps: objection, notice and the Rule 75.06 threshold

Timing matters. Before a certificate of appointment of estate trustee is issued, anyone who appears to have a financial interest in the estate may file a Notice of Objection (Form 75.1) with the registrar or the Estate Registrar for Ontario, stating the nature of their interest and of the objection.

If the Registrar tells the probate applicant that a Notice of Objection has been filed, the applicant must send a notice to the objector (Form 75.3) and file a copy with the court along with an affidavit of service.

Separately, a person with a financial interest can file Form 74P to ask the court to notify them when someone starts a proceeding involving the estate.

To have the court require a will to be formally proved under Rule 75.06, a challenger must adduce, or point to, some evidence that, if accepted, would call the will's validity into question. This is a minimal evidentiary threshold.

Having a financial interest in the estate matters too, because that is what allows a person to file a Notice of Objection before a certificate is issued. Whether you have such an interest depends on your situation, so it is worth confirming with a lawyer. A challenge is usually about whether the will is valid, not whether it is fair.

Going to court: Toronto, mediation and costs

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters, including Rule 74 and 75 proceedings. Rule 75.06 gives the court considerable discretion and flexibility to set a process for resolving a contested estate.

• A party seeking an urgent Estates List hearing must complete an Urgent Hearing Request form through the Ontario Courts Public Portal.
• For motions and applications, parties must file a costs outline through the Portal before the hearing.
• Certain estate lawsuits are referred to mandatory mediation under Rule 75.1 unless the court grants an exemption, and the Ontario government says that program operates in Toronto, Ottawa and Windsor.

Where mediation applies, the person who started the proceeding must move for directions within 30 days after the last day for submitting a Notice of Appearance (Form 75.4). Each party must provide a Statement of Issues (Form 75.1C) at least seven days before mediation. The court's directions order sets the cost of mediation and how it is shared.

Procedures differ by region and rules change, so check the practice direction for the court where your matter would be heard.

What to do next

• Find out whether a certificate of appointment of estate trustee has been issued yet.
• Collect medical records you can lawfully access, dates of key events and the names of people who saw your relative around the time the will was signed.
• Write down what you know about how the will was arranged, who attended and who benefits.
• Ask a lawyer promptly whether to file a Notice of Objection (Form 75.1) or Form 74P.
• Do not assume you have forever: limitation periods can apply to estate claims, and a lawyer can confirm which one fits yours.

Frequently asked questions