Suspicious Circumstances and Will Validity in Ontario

You think something was wrong with how a relative's will came about, perhaps because of who helped arrange it or the person's health at the time. You have heard that suspicious circumstances can shift the burden of proof, and you want to know what that really means.

This article explains who has to prove what in an Ontario will challenge, how suspicious circumstances change that, why undue influence is the exception, and what the first steps in a dispute look like.

Who has to prove what

The person putting forward the will, often the named estate trustee, has the legal burden of proving three things: due execution, knowledge and approval, and testamentary capacity. Due execution means the will was properly signed and witnessed. Knowledge and approval means the person knew what the will said and approved it.

Capacity requires a sound disposing mind. The person must 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, and, where it applies, understand the claims of those being excluded.

How the presumption works

Once due execution is proved, the law presumes knowledge, approval and capacity. That presumption can be rebutted, and it puts an evidential burden on the challengers.

If the challengers introduce evidence of suspicious circumstances, the legal burden goes back to the person defending the will. In plain terms, the defender then has to prove again that the will reflects a capable person's real wishes. What counts as suspicious depends on the facts of each case, and a lawyer can tell you whether what you have seen is likely to qualify.

• Think about what you can document, such as medical records, notes from the lawyer or others who dealt with the person, and details of who was involved in making the will.
• Keep to facts and dates rather than impressions.

Undue influence is treated differently

Many people assume suspicious circumstances help with every kind of challenge. They do not. The burden of proving undue influence stays on the people attacking the will, and suspicious circumstances do not shift it.

Testamentary undue influence means outright and overpowering coercion of the person making the will, and it must be proved on a balance of probabilities. A presumption of undue influence applies only to lifetime transactions, not to wills, so a challenger to a will gets no presumption and must prove coercion.

Getting the challenge in front of the court

Before the court will require a will to be formally proved, the challenger must adduce or point to some evidence that, if accepted, would call the will's validity into question. That is a minimal evidentiary threshold.

Before a certificate of appointment of estate trustee is issued, a person who appears to have a financial interest can file a Notice of Objection (Form 75.1) stating the nature of their interest and of the objection. If the Registrar tells the probate applicant, the applicant must send a notice to the objector (Form 75.3) and file a copy with an affidavit of service. A person with a financial interest can also file Form 74P to be notified when someone starts a proceeding involving the estate.

In the Toronto Region, the Estates List of the Superior Court of Justice hears estate, trust and capacity matters, and the court has considerable discretion and flexibility to set a process for a contested estate. Mandatory mediation applies to certain estates proceedings unless the court grants an exemption. Whether it applies to you depends on where the case is heard and what kind of proceeding it is.

What to do next

• Get a copy of the will and find out whether probate has been applied for or granted.
• List the facts that worry you, with dates and who can speak to them.
• Gather medical and other records that bear on the person's capacity when the will was signed.
• Consider filing Form 74P or a Notice of Objection if you have a financial interest, after getting advice.
• Speak with a lawyer early, since some related claims, such as dependant support, have short deadlines.

Frequently asked questions