Contesting a Will in Ontario: Grounds and Time Limits

You have read a will, or heard about one, and something feels wrong. Perhaps a parent changed their will late in life, or someone close to them seemed to take control. You may be a beneficiary who received less than expected, or a relative who was left out entirely.

This article explains the main legal grounds for challenging a will in Ontario, who has to prove what, and how time limits can affect you. It is general information, not advice on your situation. Timing questions in particular depend on the facts, so speak with a lawyer early.

The main grounds for challenging a will

Most will challenges fall into a few categories. Each one asks a different question about how the will came to exist.

• Improper execution: was the will signed and witnessed the way the law requires?
• Lack of capacity: did the person understand what they were doing when they made the will?
• Lack of knowledge and approval: did the person actually know and approve what the document said?
• Suspicious circumstances: do the surrounding events raise real doubt about capacity or about knowledge and approval?
• Undue influence: was the person pressured so that the will reflected someone else's wishes rather than their own?

These grounds often overlap. A court may look at all of the evidence together rather than treating each ground in isolation.

Who has to prove what

The person who is putting the will forward, called the propounder, carries the legal burden of proving three things: that the will was properly executed, that the person knew and approved its contents, and that they had testamentary capacity.

If you are challenging the will, you can meet your initial evidential burden by pointing to suspicious circumstances. That evidence must be the kind that, if accepted, would tend to show the person did not know and approve the contents or lacked capacity. The legal burden then goes back to the propounder.

Undue influence works differently. If you allege it against a will, the burden is on you as the party attacking the will. That makes evidence important, such as who was involved in arranging the will, what the person's circumstances were, and who stood to benefit.

Capacity and execution in more detail

The test for capacity asks whether the person understood the nature and effect of a will, the property they were dealing with, and the claims they should give effect to. It also asks whether any disorder of the mind poisoned their affections or an insane delusion influenced how they divided their property. Where suspicious circumstances raise doubt about capacity, the propounder must prove capacity on a balance of probabilities.

On execution, a contested case looks for two witnesses present at the same time who saw the person sign. In one reported case, the judge found insufficient evidence that the formalities were followed where only one interested person's uncorroborated evidence supported execution. The judge also noted probable lack of capacity and suspicious circumstances.

Time limits: what we can and cannot say

The basic limitation period in Ontario is two years from the day a claim was discovered. For a claim against an estate trustee, a person is presumed to have known of the claim on the day the act or omission took place, unless the contrary is proved.

For will challenges, there is an important exception. There is no limitation period for a proceeding seeking only a declaration, for example that a will or codicils are valid or invalid, if no consequential relief is sought. If you also ask for other relief, the answer can change.

Other deadlines may also apply in estate matters, and they depend on your relationship to the deceased and what you are asking for. Do not assume you have plenty of time. A lawyer can confirm which deadlines apply to you.

Costs, children's interests and protecting assets

Estate litigation is governed by the ordinary civil costs regime. Costs come out of the estate only where public policy considerations apply, such as giving effect to valid wills of competent testators, ensuring estates are properly administered, or litigation caused by the testator. Courts may make blended orders, where the loser pays part of the other side's costs and the estate bears the balance.

In the Toronto Region, the old practice of awarding all parties their costs out of the estate has been tempered by conduct and relative success. Do not assume the estate will fund your challenge.

If a child's interest is affected, such as in a will challenge, the Office of the Children's Lawyer must be served. If you worry assets will be distributed before your claim is heard, interim preservation is considered under Rules 45.01 and 45.02, looking at whether the assets are the subject of the dispute, whether there is a serious issue to be tried, and the balance of convenience. One reported preservation application failed at the threshold, and the unsuccessful daughter was ordered to pay costs.

What to do next

• Write down the dates: when the will was signed, when you learned of it, and when the person died.
• Gather medical records, notes, emails, and names of anyone who saw the person around the time of signing.
• Find out who the witnesses were and who helped arrange the will.
• Do not sign anything that releases the estate trustee before you get advice.
• See a lawyer promptly about deadlines and whether to object to probate.

Frequently asked questions