Disinherited Child in Ontario: Do You Have Any Rights?

Finding out that a parent left you little or nothing is painful, and it is natural to ask whether the law lets you fight it. The honest answer is that Ontario gives parents a lot of freedom over who receives their property, but that freedom has limits.

This article explains the main routes a disinherited child may have: a dependant support claim, a challenge to the will itself, and a claim about property that moved before death. Every situation turns on its facts, so treat this as a map and not a verdict.

No automatic share for an adult child

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

Put simply, being a child is not enough. Adult independent children are not entitled to dependant's relief under the Succession Law Reform Act (SLRA) just because they were left out. The courts also generally will not go behind a clear, unconditional choice of beneficiaries, although they will void conditions in a will that offend public policy.

Dependant support: the main statutory route

If a deceased person, with or without a will, did not make adequate provision for the proper support of their dependants, the court may order that adequate provision be made out of the estate. A child can claim only if they fit the legal definition of dependant, which means the deceased was providing support, or was under a legal obligation to provide support, immediately before death.

That can include an adult child who relied on the parent, but it is a question of the facts. When setting the amount and length of support, the court considers all the circumstances, including the dependant's age, health, likely future assets and means, and the claims of other dependants.

• The deadline is short: an application generally cannot be made more than six months after the grant of letters probate or letters of administration.
• The court may allow a late application, but only against the part of the estate that is still undistributed on the date of the application.
• Once the personal representative has been 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.
• An agreement or waiver you signed does not necessarily stop the court from making a support order.

Challenging the will itself

A different route is to argue that the will is not valid. The person relying on the will must prove it was properly signed, that the deceased knew and approved its contents, and that the deceased had testamentary capacity. Once proper signing is shown, the law presumes knowledge, approval and capacity, and those challenging must put forward evidence. If they raise suspicious circumstances, the burden goes back to the person relying on the will.

Testamentary capacity means a sound disposing mind. The person must understand the nature and effect of the will, recall the nature and extent of their property, understand what they are giving, and remember the people they might be expected to benefit.

Undue influence is treated differently. The burden of proving it stays with the people attacking the will, and suspicious circumstances do not shift it. It means outright and overpowering coercion of the person making the will, and it must be proved on a balance of probabilities. The presumption of undue influence that can help in lifetime transactions does not apply to wills.

Property that moved before death

Sometimes a parent put an account or property into joint names with one child. When a parent gratuitously transfers property to an adult child, including into joint names, the law presumes the child holds it 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 also consider the parent's conduct afterwards.

Even when the presumption is rebutted, the survivor does not always keep everything. In one Court of Appeal case, the presumption was rebutted, yet 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.

For a dependant support claim specifically, joint accounts and joint-tenancy property are treated as passing at death, but they count only to the extent the money or consideration came from the deceased, and the dependant must prove that.

What to do next

• Note the date letters probate or administration were granted, because the support deadline runs from that date.
• Gather proof of any financial support the deceased was giving you before death, and records of joint accounts or transfers.
• If probate has not been issued, a person with a financial interest can file a Notice of Objection (Form 75.1) with the registrar or the Estate Registrar for Ontario.
• Consider filing Form 74P to ask the court to notify you when someone starts a proceeding involving the estate.
• Ask the executor not to distribute while you take advice, and speak with an estates lawyer soon, since most other claims also face a two-year general limit that depends on when you discovered the claim.

Frequently asked questions