How to File a Notice of Objection to Stop Probate in Ontario

You may have just learned that someone has applied to be the estate trustee, or that a will has been put forward that does not look right to you. You want the court to pause before it issues an estate certificate, commonly called probate. A Notice of Objection is the Ontario tool built for that moment.

It is a short step with real consequences. This article explains who can file, what the notice must say, how long it lasts, what the applicant can do in response, and what usually comes next. It does not cover making a will, and it is general information, not advice on your situation.

Who can file a Notice of Objection, and when

Under rule 75.03(1) of the Rules of Civil Procedure, anyone who appears to have a financial interest in the estate may file a notice of objection, using Form 75.1. That can include a beneficiary under a will, someone who would inherit if there were no will, or someone who says an earlier will should apply. Whether your interest is enough in a particular case is worth confirming with a lawyer.

Timing matters. The notice can be filed at any time before a certificate of appointment of estate trustee is issued. Once the certificate has issued, a notice of objection is no longer the right tool.

The notice must state the nature of your interest in the estate and the nature of your objection. Vague notices invite quick challenges, so be specific and honest about both.

What happens after you file

The person applying for the certificate serves you with a Notice to Objector (Form 75.3). This starts a short clock. If you do not serve a Notice of Appearance (Form 75.4) within 20 days after that service, the application goes ahead as if no objection had been filed.

A notice of objection does not last forever. It expires three years after it is filed. You may withdraw it yourself, or the court may order it removed. If your dispute is still unresolved near the three-year mark, talk to a lawyer about next steps well before then.

What usually follows: directions and proof of the will

If you serve a Notice of Appearance, the dispute usually moves to the court. Anyone who appears to have a financial interest in an estate may apply for directions under rule 75.06. Directions can include an order that the will be proved in a formal way.

The court will not order proof of a will automatically. You must first meet a minimal evidentiary threshold: some evidence which, if accepted, would call the will's validity into question. Suspicion alone is generally not enough, so gather facts, not just worries.

Who has to prove what in a will challenge

The person putting forward the will has the legal burden on due execution, knowledge and approval, and testamentary capacity. Once due execution is proven, a presumption helps them. Evidence of suspicious circumstances shifts the legal burden back to them.

Undue influence is different. Whoever alleges it has the burden of proving it.

Testamentary capacity means the person understood the nature and effect of a will, recalled the nature and extent of their property, understood what they were giving, and remembered the people they might be expected to benefit. A disorder that may affect capacity is considered in applying that test, but it is an error to infer lack of capacity from alcohol or drug use alone.

• Due execution, knowledge and approval, and capacity: the burden is on the person putting forward the will
• Suspicious circumstances: the burden shifts back to that person
• Undue influence: the burden is on whoever alleges it

If the certificate is already issued, and the time limit risk

If a certificate has already been issued, the route is different. Under rule 75.04, a person with a financial interest may apply to revoke it. The court may do so if the certificate was issued in error or because of a fraud on the court, if the appointment is no longer effective, or for any other reason.

Watch the calendar. The basic limitation period is two years from the day the claim was discovered. Ontario courts have held a will challenge brought more than two years after the death, with no discoverability issue, to be statute-barred. How discoverability applies to will challenges is unsettled and depends on the facts, so do not assume you have more time.

One related point: a Certificate of Appointment of Estate Trustee During Litigation requires no Estate Information Return and no Estate Administration Tax.

What to do next

• Find out whether a certificate has been issued yet, since that decides whether you object or seek revocation
• Write down your interest in the estate and the specific grounds for your objection
• Collect evidence: the will, earlier wills, medical records and dates, and who was involved in preparing it
• Diarize 20 days from service of any Notice to Objector
• Note the three-year expiry of your objection and the two-year limitation risk
• Speak with an Ontario estates lawyer before filing, as the steps and risks are hard to reverse

Frequently asked questions