Notice of Objection to Probate in Ontario: What It Does

If you think a will is invalid, or that the wrong person is applying to run an estate, you may be worried that a certificate will be issued before you can act. A notice of objection is the tool Ontario's rules give you to be heard first.

This article explains what a notice of objection is, who can file one, what happens next, and why a deadline can make or break your position.

What a notice of objection is

Under r. 75.03(1), at any time before a certificate of appointment of estate trustee is issued, anyone who appears to have a financial interest in the estate may file a notice of objection on Form 75.1. It must state the nature of their interest and of the objection.

Filing does not decide the dispute. It puts the applicant and the court on notice that someone intends to contest the application.

What happens after you file

• The applicant serves a notice to objector on Form 75.3.
• You must serve a notice of appearance on Form 75.4 within 20 days after that service.
• If you do not, the application goes ahead as if no objection had been filed.

That 20-day window is short, so keep an eye out for the notice and get advice as soon as it arrives.

How long it lasts

A notice of objection expires three years after it is filed. The objector may withdraw it, or the court may order it removed.

The wider dispute

A notice of objection is usually the first step. Questions about whether the will is valid may then be sorted out through an application for directions, where a minimal evidentiary threshold applies. Whoever puts forward the will has the burden on capacity, execution, and knowledge and approval, and whoever alleges undue influence must prove it.

If the concern is capacity, the Court of Appeal for Ontario has described what a sound disposing mind requires. The person making the will must understand the nature and effect of a will, recollect the nature and extent of their property, and understand the extent of what they are giving. They must also remember the people they might be expected to benefit and, where applicable, understand the claims of people they are excluding. A disorder that may affect capacity is considered when applying that test, but it is an error to infer a lack of capacity from alcohol or drug use alone.

Time limits for the underlying challenge still matter. The basic limitation period is two years from discovery.

If a certificate has already been issued, the court may revoke it on the application of a person with a financial interest, for example if it was issued in error or through fraud on the court.

Related issues that often come up

Some wills are challenged because of a signing problem, and some because of a change in the deceased's relationships. The Superior Court of Justice may order that a document that was not properly executed is as valid and fully effective as the deceased's will. Unless the will shows a contrary intention, gifts to a former spouse and their appointment as executor are revoked if the marriage ends after the will is made.

If your concern is who is applying, Ontario's probate guidance says that with no will, the spouse or common-law partner usually has the first right to apply. If there is none, a close adult relative (child, parent, grandchild, sibling or nephew/niece) can apply. The court may grant administration to the married spouse, to the person the deceased was living with in a conjugal relationship outside marriage immediately before death, or to the next of kin, or to both. Where there is insolvency or other special circumstances, the court does not have to appoint the person otherwise entitled.

A bond is required when the deceased died without a will, when the applicant was not named as estate trustee, or when the applicant does not live in Ontario, another province or territory, or a Commonwealth country. It is generally double the value of the estate unless a judge orders otherwise. In special circumstances, a judge may reduce the bond or dispense with it.

Once someone has been appointed, a person with a financial interest, such as a beneficiary, may move for orders requiring the estate trustee to file a statement of estate assets, give further particulars, or pass accounts. The Superior Court of Justice may also remove a personal representative on any ground on which it may remove any other trustee. The Court of Appeal for Ontario has said that removing estate trustees whom the deceased specifically chose is a serious matter, because it intrudes on the deceased's intention.

What to do next

• Confirm whether a certificate of appointment has already been issued.
• Write down your interest in the estate and the reason for your objection.
• Collect documents that support your concern.
• Diarize the 20-day period once you are served with Form 75.3.
• Speak with a lawyer about next steps, including the three-year expiry.

Frequently asked questions