Suspicious Circumstances in an Ontario Will Challenge: Who Has to Prove What

When someone close to you dies and the will looks wrong, it is natural to ask who has to prove what. Maybe the will changed late in life, or a person who helped with daily affairs ended up with most of the estate. In an Ontario will challenge, the answer depends on which issue is in dispute.

This article explains how the burden of proof moves between the person defending the will and the people attacking it. It also covers the early steps a challenger can take. It does not cover making a will, and it is general information, not advice on your situation.

Who has to prove the will is valid

The person propounding the will, usually the person asking the court to accept it, has the legal burden of proving three things: due execution, knowledge and approval, and testamentary capacity. Due execution is about whether the will was made in the way the law requires, and a lawyer can explain what that involves for a particular will. Knowledge and approval means the testator knew what the will said and approved it. Capacity is about the testator's mental ability to make the will.

These rules come from Vout v. Hay, as summarized by the Court of Appeal for Ontario in Neuberger v. York. Separately, the Superior Court of Justice may order that an improperly executed document is valid as the deceased's will if it is satisfied the document sets out the deceased's testamentary intentions. This is a fairly recent power, and whether it applies can depend on when the will was made and when the person died, so it is worth confirming with a lawyer for an older will.

How the burden shifts

Once due execution is proved, a rebuttable presumption arises that the testator had knowledge, approval and capacity. That puts an evidential burden on the challengers. In plain words, they need to bring some evidence that raises a real question.

If the challengers introduce evidence of suspicious circumstances, the legal burden goes back to the person propounding the will. That person must then prove the will on the issues of knowledge, approval and capacity.

What counts as suspicious circumstances

Suspicious circumstances matter because, once challengers introduce evidence of them, the legal burden goes back to the person propounding the will. Whether something is suspicious depends on the evidence in each case, so it is worth confirming with a lawyer how your facts would be viewed.

Capacity is one area where the details matter. The testator needs a sound disposing mind, which means they must be able to do the following:

• Understand the nature and effect of the will
• Recollect the nature and extent of their property
• Understand what they are giving
• Remember the people they might be expected to benefit
• Where applicable, understand the claims of those being excluded

How this applies depends on your situation, so a lawyer can help you judge whether the evidence you have is likely to be enough.

Undue influence is different

Undue influence does not follow the same shifting pattern. The burden of proving it stays on the people attacking the will, and suspicious circumstances do not shift it.

Testamentary undue influence means outright and overpowering coercion of the testator, and the challenger must prove it on a balance of probabilities. The presumption of undue influence that can apply to lifetime gifts does not apply to wills, so a challenger gets no presumption and must prove coercion.

Early steps and what to do next

Before the court will require a will to be formally proved, a person challenging it must adduce, or point to, some evidence that, if accepted, would call the will's validity into question. The threshold under Rule 75.06 is minimal.

If probate has not yet been granted, anyone who appears to have a financial interest in the estate may object under Rule 75.03(1) by filing a Notice of Objection (Form 75.1). It states the nature of their interest and of the objection, and goes to the registrar or the Estate Registrar for Ontario. In Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters, and Rule 75.06 gives the court considerable discretion and flexibility to set a process for resolving a contested estate.

• Gather the will, any earlier wills and related documents.
• Write down dates, names and events that raised your concern.
• Collect medical, banking or care records you can lawfully access.
• Note whether a certificate of appointment has been issued yet.
• Speak with an Ontario estates lawyer promptly, because deadlines may apply.

Frequently asked questions