How Estate Litigation Works in Ontario: Steps and Timeline

An estate dispute can start with a will you doubt, an executor you do not trust, or a family member who says they were left out. It can feel unclear what happens after someone says the word lawsuit.

This article walks through the usual stages in the Ontario Superior Court of Justice and the timelines that are set out in the rules. There is no single fixed schedule for a whole case, so the length depends on the facts, the issues and the court's directions.

Step one: identify what the dispute is about

Estate disputes tend to fall into a few groups. Knowing which one you have shapes the process and the deadlines.

• Challenges to a will, such as capacity or undue influence.
• Claims for support from a dependant of the deceased.
• Complaints about how an estate trustee has handled the estate, including a request for accounts.
• Requests to remove or replace an estate trustee.
• Claims such as unjust enrichment or disputes over joint accounts.

Step two: early protective steps

Before a certificate of appointment of estate trustee is issued, a person who appears to have a financial interest in the estate may file a Notice of Objection (Form 75.1). A person with a financial interest can also file Form 74P to ask the court to notify them when someone starts a proceeding involving the estate.

If the dispute involves land, a certificate of pending litigation may matter. Starting a proceeding about an interest in land is not notice to non-parties until the court issues the certificate and it is registered. The court can later discharge it on several grounds, including that the claimant has no reasonable claim to the land interest.

Step three: the court process

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. In practice, that means the steps can differ from case to case.

A party who needs an urgent 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. Other regions have their own practice directions, so check the one for the court where your case will be heard.

Step four: mandatory mediation

Under Rule 75.1, certain lawsuits about estates, trusts and substitute decisions are referred to mandatory mediation unless the court grants an exemption. The Ontario government says the program operates in Toronto, Ottawa and Windsor. Mediation is mandatory in certain proceedings, including contested passings of accounts and claims against an estate.

The court's directions order sets the cost of mediation and how it is shared, and parties pay mediators directly.

Deadlines that can limit your claim

Some claims must be started quickly. An application for dependant support cannot be made more than six months after the grant of letters probate or of administration, although the court may allow a late application against any part of the estate still undistributed.

Most other claims must be started within two years after the day the claim was discovered, which is the earlier of when you actually knew and when a reasonable person in your position ought to have known. Claims by or against an estate for torts or injuries, other than libel and slander, must be started within two years of the death. The two-year period does not run while a claimant is incapable of starting a proceeding and has no litigation guardian. Because the right deadline depends on the claim, confirm it with a lawyer early.

What to do next

• Write down what the dispute is about and who is involved.
• Collect the will, any accounts, bank records and correspondence.
• Note the date the estate certificate or letters were granted, if any.
• Ask a lawyer which deadline applies to your claim.
• Consider whether mediation or a negotiated resolution is realistic before a hearing.

Frequently asked questions