How to Contest a Will in Ontario: Grounds and Process

You may think a will does not reflect what your parent or relative really wanted. Perhaps they were unwell, someone pressured them, or the document does not look right. Disagreeing with a will is not enough on its own, so it helps to know what a court looks at.

This article explains the usual grounds for challenging a will in Ontario, who has to prove what, and the general steps of a contested case. Every case turns on its own facts, so a lawyer can confirm how this applies to you.

Grounds for challenging a will

Courts do not set a will aside simply because it seems unfair. Ontario law lets people choose who receives their property, but that freedom is limited by legislation and public policy. Courts will void testamentary conditions that offend public policy, yet they will not go behind a clear, unconditional choice of beneficiaries. The Court of Appeal has also said there is no statutory duty on a competent testator to provide in a will for an adult, independent child.

There is a separate route for dependants. If a deceased person, with or without a will, has not made adequate provision for the proper support of their dependants, the court may order that adequate provision be made out of the estate. A dependant is the deceased's spouse, parent, child, or brother or sister to whom the deceased was providing support, or was under a legal obligation to provide support, immediately before death. Spouse includes a former spouse whose marriage ended in divorce, and an unmarried partner who meets the Family Law Act definition. An adult independent child is not entitled to this relief unless they meet the dependant definition.

A challenge to the will itself targets how it came about. The common questions are these:

• Was the will properly signed and witnessed (due execution)?
• Did the person know and approve of what the will said?
• Did the person have testamentary capacity?
• Was the person subjected to undue influence?

The person who puts the will forward has the legal burden of proving due execution, knowledge and approval, and testamentary capacity.

Who has to prove what

Once due execution is proved, the law presumes knowledge, approval and capacity. That puts an evidential burden on the challengers. If they bring evidence of suspicious circumstances, the legal burden goes back to the person defending the will.

Undue influence works differently. The burden of proving it stays on 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 applies to lifetime gifts does not apply to wills.

The steps in a challenge

Timing matters. Before a certificate of appointment of estate trustee is issued, anyone who appears to have a financial interest in the estate may object under Rule 75.03(1). They 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 about it, the applicant must send a notice to the objector (Form 75.3) and file a copy with an affidavit of service.

Before the court requires a will to be formally proved, the challenger must adduce or point to some evidence that, if accepted, would call the will's validity into question. This is a minimal threshold. You can also file Form 74P to ask the court to notify you when someone starts a proceeding involving the estate.

Mediation, court and costs

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 Mandatory Mediation Program operates in Toronto, Ottawa and Windsor. The exact areas are set out in the rule itself, so confirm this for the place where your case will be heard.

• 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, and each party must provide a Statement of Issues (Form 75.1C) at least seven days before mediation.
• The directions order sets the cost of mediation and how it is shared, and parties pay mediators directly.

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters, and Rule 75.06 gives the court considerable discretion to set a process for a contested estate. A party seeking an urgent hearing completes an Urgent Hearing Request form through the Ontario Courts Public Portal, and motions and applications need a costs outline filed through the Portal.

What to do next

• Find out whether a certificate of appointment has been issued yet, since a Notice of Objection must come before that.
• Collect the will, earlier wills, medical records, and notes about who was involved in making the will.
• Write down dates and names of witnesses, such as the lawyer, doctor or friends who saw your relative at the time.
• Consider Form 74P if you want notice of any estate proceeding.
• Speak with an estates litigation lawyer early, because evidence and deadlines can affect your options.

Frequently asked questions