Proving a Will Was Not Properly Signed or Witnessed in Ontario

You may have been given a will that looks odd. Perhaps the witnesses were not in the room, one of them is a beneficiary, or the person who signed was unwell. If you think the will was not properly signed or witnessed, the question is what can actually be proved in court.

This article explains how Ontario courts approach proof of signing and witnessing in a dispute, who carries the burden, and what evidence tends to matter. It is general information, not advice on your situation. The exact statutory wording and any court power to excuse a defect should be confirmed with a lawyer.

What the court looks for when execution is challenged

When the signing of a will is contested, the court looks for proof that two witnesses were present at the same time and saw the person who made the will sign it. The idea is simple: the formalities exist so that there is reliable evidence the document is what it claims to be.

In one Court of Appeal case, the judge found insufficient evidence that the formalities were followed where only one interested person gave uncorroborated evidence that the will had been signed. The judge also noted a probable lack of capacity and suspicious circumstances.

Whether a particular defect can be fixed or excused by the court depends on the statute and the facts. That is a point to raise early with a lawyer, because it can change the whole strategy.

Who has to prove what

The party putting the will forward carries the legal burden of proving due execution, knowledge and approval of its contents, and testamentary capacity. You do not have to prove the will is invalid just because you question it.

A challenger can meet an initial evidential burden by pointing to suspicious circumstances that, if accepted, would tend to show the person did not know and approve the contents or lacked capacity. The legal burden then reverts to the party relying on the will.

Capacity often travels with signing problems

Signing disputes frequently overlap with capacity. Under the test applied in Ontario, the person must understand the nature and effect of a will, the property being disposed of, and the claims to be given effect to, with no disorder of the mind poisoning affections and no insane delusion influencing the gift.

If you raise both issues, be clear which facts support each one. Medical records, notes from people who saw the person around the date of signing, and the circumstances in which the document was prepared can all matter, though what is available varies from case to case.

Time limits, objections and process

There is no limitation period for a proceeding seeking only a declaration, such as that a will is valid or invalid, if no consequential relief is sought. Once you ask for other relief, limitation questions arise, and the basic period is two years from the day the claim was discovered. Because the line between the two can be fine, get advice before assuming you have unlimited time.

When a beneficiary files a Notice of Objection (Form 75.1), court staff notify the applicant, who must send the objector a notice to objector (Form 75.3) and file it with an affidavit of service. In one case, an objection meant the registrar could not issue probate and an order from a judge was required. The time limits and exact steps for filing an objection are worth confirming with a lawyer.

• Mandatory mediation applies to specified estate proceedings, including claims against an estate.
• If a child's interest is affected, such as in a will challenge, the Office of the Children's Lawyer must be served.
• The listed court fee for a notice of objection other than to accounts is $94.00, but confirm which fee applies to your filing.

Costs and risk

Estate litigation follows the ordinary civil costs regime. Costs come out of the estate only where public policy considerations apply, such as giving effect to valid wills of competent testators, ensuring estates are properly administered, or litigation caused by the testator. A losing challenger should not assume the estate will pay.

What to do next

• Get a copy of the will and note who is named as witnesses.
• Write down what you know about the signing: who was present, when, where, and who told you.
• Collect records about the person's health and memory around that time.
• Note the date you first learned of the will and any concerns.
• Identify whether any minor or dependent child may be affected.
• Speak to an Ontario estates lawyer before filing an objection or starting a court proceeding.

Frequently asked questions