- Contested matters in Probate Court go to a judge, and a contentious application starts with Form 45 and an affidavit in Form 46.
- A family maintenance application cannot be brought after six months from the grant of probate, subject to extension.
- Appeals from a registrar's decision must be started within 30 days.
Finding out that a loved one's will may not reflect their wishes is painful. You may suspect undue influence, that the person lacked capacity, or that the will was not signed properly. Challenging a will is a serious step with strict timing.
This article explains the general process in Nova Scotia and the deadlines the rules set out. Which route fits you depends on the facts, so speak with a lawyer early.
This article covers the law of Nova Scotia.
Common grounds in plain words
- Capacity: questions about whether the person understood what they were doing.
- Influence: concerns that someone pressured the person.
- Signing: questions about how the will was signed and witnessed.
- Other concerns, such as fraud or a suspicion about the document itself.
How each of these applies depends on your situation, and the evidence available, such as medical records, witnesses and the circumstances of the signing, can matter. It is worth confirming with a lawyer whether your facts are likely to be enough.
Where the dispute is heard
Probate applications are dealt with by a Registrar of Probate for the district, and contested matters go to a judge. A contentious application starts with a Notice of Application (Form 45) and an affidavit (Form 46). Since April 1, 2024, a filer applying for a grant must include the original will as an exhibit to an affidavit.
Someone wanting to force a named executor to accept or refuse the office may apply to court by citation, but not until at least 20 days after the testator's death unless the court finds circumstances warrant earlier.
An application for a grant of probate must be accompanied by the original will with proof of execution, proof of death, any required renunciations or security, and payment of the probate tax. If an application or required material is incomplete, the registrar may issue a notice of rejection in Form 17 by ordinary mail.
Deadlines to watch
| Step | Time limit |
|---|---|
| Family maintenance application | Not after six months from the grant of probate (or administration with will annexed), subject to extension |
| Appeal of a registrar's decision under s. 93 | Not later than 30 days after the decision or order |
| Matrimonial property application by a surviving spouse | Within six months after the grant, with limited extension |
The time limit for challenging the validity of a will itself depends on the circumstances, so do not wait; ask a lawyer right away.
Related claims and why delay matters
An application under the Testators' Family Maintenance Act cannot be brought after six months from the grant of probate or administration with will annexed, unless the time is extended under subsection (2), and a judge may suspend administration. Separately, a surviving spouse's application to divide matrimonial assets under the Matrimonial Property Act must be made within six months after probate or administration is granted, and this right is in addition to rights under the will or on intestacy.
The court may extend the Matrimonial Property Act deadline where the survivor did not know of the grant or lacked adequate opportunity, but a late application reaches only undistributed assets. The estate is advertised in the Royal Gazette for six months, after which it can move to distribution, and a personal representative who distributes earlier risks personal liability for unpaid claims.
Why the grant and what follows it matter
Property registered solely in the deceased's name cannot be transferred to beneficiaries without court approval; the Probate Court gives the executor the legal authority to transfer it out of the estate. That is why the timing of a grant is important to anyone thinking about a challenge.
Within 30 days after a grant is issued, the personal representative must serve notice of the grant on each person who is or may be entitled to share in the estate, and proof of service is due within 60 days; the registrar may extend these times. That notice may be how you first learn that a grant has been issued, so keep any papers you receive.
After the grant, the personal representative files a full inventory in Form 29 within 3 months. The personal representative must also keep accurate records of all property and debts of the estate. Those records can matter if a dispute arises about how the estate has been handled.
What to do next
- Write down why you doubt the will and who was involved when it was made.
- Collect the will, medical records, and names of witnesses.
- Find out whether a grant has been issued, and note its date for the deadlines above.
- Speak with a lawyer before filing anything or confronting the executor.
Frequently asked questions
Who can contest a will?
Who is allowed to challenge a will depends on your relationship to the person and to the estate, so it is worth confirming your own situation with a lawyer. A lawyer can confirm whether you qualify.
Does a contested will go before a judge?
Yes. Contested matters go to a judge, and a contentious application starts with Form 45 and an affidavit in Form 46.
Is there a time limit?
Some claims have clear limits, such as six months from the grant for a family maintenance application, subject to extension. For challenging the will's validity, confirm the timing with a lawyer promptly.
Can I appeal a registrar's decision?
Yes, but an appeal under s. 93 of the Probate Act must be started not later than 30 days after the decision or order.
Sources
- Courts of Nova Scotia – Probate Court — courts.ns.ca
- Probate Court Practice, Procedure and Forms Regulations — novascotia.ca
- Probate Act, SNS 2000, c 31, s. 63 and following — nslegislature.ca
- Testators' Family Maintenance Act, RSNS 1989, c 465, s. 14 — nslegislature.ca
- Matrimonial Property Act, RSNS 1989, c 275 — nslegislature.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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