Is a No-Contest Clause Enforceable in an Ontario Will?

You have read the will, and it says that anyone who challenges it loses their gift. Now you are wondering whether to raise a concern at all, and whether the clause is something a court in Ontario would actually enforce.

There is no single answer that fits every will. This article explains what a no-contest clause is, what the law says about the limits on a testator's choices, which kinds of claims are different from a challenge to the will, and how to decide on next steps with proper advice.

What a no-contest clause is meant to do

A no-contest clause, sometimes called an in terrorem clause, is a line in a will that tries to discourage challenges. It usually says that a beneficiary who disputes the will, or goes to court about the estate, forfeits what the will would otherwise leave them.

These clauses vary a great deal in wording. Some are broad and some target only one kind of challenge. The exact words matter, and so does what you are actually asking a court to do.

What Ontario law says about testators' freedom

Ontario gives people a lot of freedom in deciding who gets their property. The Court of Appeal for Ontario has said that courts will not go behind a testator's clear, unconditional choice of beneficiaries. At the same time, that freedom is limited by legislation and public policy, and courts will void testamentary conditions that offend public policy.

Whether a given no-contest clause is enforced against a given beneficiary is a question that turns on the wording of the clause, the type of claim and the facts. It is not safe to assume the clause is automatically valid, and it is not safe to assume it is automatically empty. A lawyer who reads the will can tell you how it is likely to apply to your situation.

Claims that do not depend on attacking the will

Some rights come from legislation rather than from the will, and a will cannot simply switch them off. The clearest example is dependant support. If a deceased person 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, with or without a will. A court can make a support order even if the dependant signed an agreement or waiver saying otherwise.

• A dependant means the deceased's spouse, parent, child, or brother or sister to whom the deceased was providing support, or was legally obliged to provide it, immediately before death.
• A former spouse whose marriage ended in divorce can be included, and an unmarried partner who meets the Family Law Act definition can claim as a spouse.
• An adult, independent child is not entitled to dependant's relief unless they meet that definition.

Time limits are tight. A dependant support application generally cannot be made more than six months after the grant of letters probate or letters of administration. The court may allow a late application, but only against the part of the estate that has not yet been distributed.

Challenging the will itself

A challenge to validity is different from a support claim. If you question capacity or whether the will was properly made, the law sets out who must prove what. The person defending the will carries the legal burden of proving due execution, knowledge and approval, and testamentary capacity. Undue influence is treated differently, and the burden of proving it stays with the people attacking the will.

Before the court will require a will to be formally proved, the challenger must point to some evidence that, if accepted, would call its validity into question. That is a minimal threshold. Even so, a clause that threatens loss of a gift is a real risk to weigh, because the outcome of a challenge is never certain. This is the point where a lawyer's review of the clause and your evidence matters most.

Some steps are about protecting your position rather than attacking the will. 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. Whether asking for notice would be treated as a challenge by a particular clause depends on its wording.

What to do next

• Get a complete copy of the will and read the clause word for word.
• Write down what you actually want: more information, accounts, support, or a ruling that the will is invalid.
• Note the date letters probate or letters of administration were granted, since the six-month support deadline runs from it.
• Collect documents and records that show your relationship to the deceased and any support they gave you.
• Ask a lawyer how the clause is likely to apply before you file anything or sign any agreement.

Frequently asked questions