How to Contest a Will in Ontario: Grounds and Steps

Finding out that a parent's will leaves you out, or differs sharply from what you were told, is upsetting. Before you act, it helps to understand what a court actually looks at. The focus is on whether the will was validly made and whether the person understood what they were doing.

This article explains the main grounds for challenging a will in Ontario, who carries the burden of proof, and the first steps people commonly take. It is general information, not advice for your situation.

The main grounds for a challenge

The party propounding a will, meaning the person asking the court to uphold it, carries the legal burden of proving three things: due execution, knowledge and approval of the contents, and testamentary capacity. Challenges usually target one or more of these.

How suspicious circumstances change the burden

A challenger can meet an initial evidential burden with evidence of suspicious circumstances that, if accepted, would tend to negative knowledge and approval or capacity. The legal burden then reverts to the party defending the will.

Where suspicious circumstances raise doubt about capacity, the person defending the will must prove capacity on a balance of probabilities. This is different from undue influence, where the burden stays on the person attacking the will.

In one reported case, the judge found insufficient evidence of compliance with formalities where only one interested person's uncorroborated evidence supported execution, and also noted probable lack of capacity and suspicious circumstances.

First steps in an Ontario challenge

• Notice of objection. When a beneficiary files a Form 75.1 notice of objection, court staff notify the applicant, who must send the objector a Form 75.3 notice and file it with an affidavit of service.
• Effect on probate. Because of a notice of objection, a court registrar may be unable to issue probate, and a probate order from a judge may be required.
• Fees. The listed court fee for a notice of objection other than to accounts is $94.00, and fees can change.
• Children's interests. The Office of the Children's Lawyer must be served in estate matters affecting a child's interest, including will challenges.
• Mediation. Mandatory mediation applies to specified estate proceedings, including claims against an estate.

Court procedures for notices of objection can change, so older descriptions may be out of date. A lawyer can confirm the current steps and time limits.

Protecting assets and understanding limits

If you worry that assets will be distributed while the dispute is open, the court can order interim preservation. It considers whether the assets are the subject of the dispute, whether there is a serious issue to be tried, and the balance of convenience, and may impose conditions.

These applications can fail. One application to stop distribution of an estate failed at the threshold, and the applicant was ordered to pay costs.

There is also a point about timing. There is no limitation period for a proceeding seeking only a declaration, such as that a will is valid or invalid, if no consequential relief is sought. Many claims seek more than a declaration, so do not assume you have unlimited time. Ask a lawyer about your deadlines promptly.

What to do next

• Get a copy of the will and any earlier wills or codicils, if you can.
• Write down who was present when the will was signed and who the witnesses were.
• Collect medical records, notes and messages that bear on the person's health and decision-making around the time of signing.
• Note anything unusual, such as who arranged the will or who benefited.
• Speak to a lawyer promptly, before any distribution takes place, about deadlines and options.
• Consider whether a negotiated settlement could meet your goals, given that costs are generally not paid from the estate unless public policy considerations apply.

Frequently asked questions