Siblings Fighting Over an Estate in Ontario: What to Do

Grief and money are a hard mix. When a parent dies, disagreements between siblings about the will, a joint bank account, or who looked after Mom or Dad can turn into lasting rifts.

This article lays out the usual routes in Ontario, starting with the least costly, and explains a few legal ideas that often decide who has a real claim.

Start by understanding what the dispute is really about

Most sibling fights fall into a few groups: a sibling is unhappy about what the will says, a sibling questions whether the parent understood the will, money moved to one child before death, or one child did much of the caregiving and wants recognition. Each has a different legal test, so naming the real issue helps.

On a will's content, a competent testator has no statutory duty to provide for an adult, independent child, and Ontario law lets testators exclude children who are not dependants. Adult independent children are not entitled to dependant's relief unless they meet the definition of dependant, meaning the deceased was supporting them or was legally obliged to immediately before death.

Common claims siblings raise

• Capacity: the testator needs a sound disposing mind, which includes understanding the will's effect, knowing their property, and remembering people they might be expected to benefit.
• Undue influence: this means outright and overpowering coercion, and the person attacking the will must prove it. There is no presumption of undue influence for wills, only for lifetime gifts.
• Joint accounts: where a parent put an adult child on an account without payment, the law presumes the child holds it for the parent's estate, and the child must rebut that. The question is the parent's actual intention at the time.
• Caregiving: an unjust enrichment claim requires an enrichment, a corresponding deprivation and no juristic reason. For services, a fee-for-service money award is the default remedy.

Even when a joint-account presumption is rebutted, the survivor does not always keep the money. In one Court of Appeal case, the sons held the funds under an obligation to share them equally among all five children.

The route from conversation to court

A sensible order is: ask for documents and a plain explanation, then try a facilitated conversation or negotiation through lawyers, then mediation, and then court. Court is not always avoidable, but each step may narrow the issues.

If you have a financial interest and fear a certificate of appointment of estate trustee will be issued, you may file a Notice of Objection (Form 75.1) with the registrar, stating your interest and your objection. If you have a financial interest in the estate and simply want to be told when someone starts a proceeding involving it, you can file Form 74P to ask the court to notify you.

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters. Rule 75.1 sends certain estate lawsuits to mandatory mediation unless the court grants an exemption.

Watch the deadlines and the freeze on distributions

A dependant support application is a claim by a spouse, parent, child, or brother or sister whom the deceased was supporting, or was legally obliged to support, immediately before death. That kind of application generally cannot be made more than six months after the grant of letters probate or letters of administration, although the court may allow a late application against any part of the estate still undistributed. Once a personal representative is served with notice of such an application, they must not distribute the estate until the court has dealt with it, unless everyone entitled to apply consents or the court orders otherwise.

For other claims, the general rule is two years from when the claim was discovered. Some estate claims have a different rule, so ask early.

What to do next

• List what you want: information, a changed outcome, or a fair accounting.
• Gather the will, bank statements, medical notes and messages about the parent's wishes.
• Avoid moving or spending estate assets yourself.
• Note the date probate was granted, if it has been.
• Speak with an estates lawyer before sending accusations or starting a claim.

Frequently asked questions