Estate Litigation in Ontario: How an Estate Dispute Works

If you are a beneficiary or an estate trustee and a court fight over an estate has started or looks likely, the process can feel confusing. Estate disputes follow their own rules, and the steps are often different from an ordinary lawsuit.

This article walks through the stages most estate disputes pass through in Ontario, from the first notice to a hearing or trial. Every estate is different, so treat it as a map and not as advice for your situation.

How estate disputes usually begin

Most estate disputes start with a worry about one of a few things: whether a will is valid, whether the trustee is doing the job properly, or whether someone has been left without support. The first step depends on which worry you have.

• Before a certificate of appointment of estate trustee is issued, a person who appears to have a financial interest in the estate may object under Rule 75.03(1).
• 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.
• A beneficiary or creditor can ask the court to require an executor or administrator to account for the deceased's property.
• The Superior Court of Justice may remove a personal representative and appoint another suitable person.
• If the deceased did not make adequate provision for a dependant, the court may order that adequate provision be made out of the estate.

Early steps: objections, notices and the right court

An objection is made by filing a Notice of Objection (Form 75.1) with the registrar or the Estate Registrar for Ontario, stating the nature of your interest and of your objection. If the Registrar tells the probate applicant that the notice 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.

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 and guardianship proceedings. Rule 75.06 gives the court considerable discretion and flexibility to set a process for resolving a contested estate. Procedures differ by region, so the practice direction for the court where your case will be heard matters.

In Toronto, a party seeking an urgent Estates List hearing must complete an Urgent Hearing Request form through the Ontario Courts Public Portal, and parties on motions and applications must file a costs outline through the Portal before the hearing.

Mediation before a hearing

Under Rule 75.1, certain lawsuits about estates, trusts and substitute decisions are referred to mandatory mediation unless the court grants an exemption. Mediation is mandatory in certain estates proceedings, including contested passings of accounts, claims against an estate, and proceedings under the Substitute Decisions Act, 1992. The Ontario government says the Mandatory Mediation Program operates in Toronto, Ottawa and Windsor. Whether it applies to your case depends on where the proceeding is.

The timelines are tight.

• 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).
• The parties must choose a mediator within 30 days of the order giving directions.
• The mediator must give at least 20 days' notice of the session.
• 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, and parties pay mediators directly.

The main kinds of fight and what a court can do

If a dispute involves land, starting a proceeding is not notice to non-parties until the court issues a certificate of pending litigation and it is registered. The court may later discharge it on grounds such as the claimant having no reasonable claim to the land interest.

Time limits and what to do next

As a general rule, most claims must be started within two years after the day the claim was discovered. Dependant support claims are an exception: no application for dependant support may be made more than six months after the grant of letters probate of the will or of letters of administration, and the Limitations Act, 2002 lists that provision as applying instead of the general two-year rule. The court may allow a late application, but only against any portion of the estate still undistributed on the date of the application.

Claims by or against a deceased person's estate for torts or injuries (other than libel and slander) must be started within two years of the death. Separately, the general two-year period under the Limitations Act, 2002 does not run while a claimant is incapable of starting a proceeding and has no litigation guardian. Whether that applies to a claim with its own time limit depends on the facts, so it is worth confirming with a lawyer. Filing a notice of objection to accounts in response to a trustee's application to pass accounts does not start a proceeding, so the two-year period does not apply to it.

• Write down the dates of the death, the grant (if any) and when you first learned of the problem.
• Gather the will, account statements, correspondence and any notices you have received.
• Decide whether you need to file a Notice of Objection or Form 74P now.
• Ask a lawyer which deadline applies to your claim before waiting to see what happens.

Frequently asked questions