A will contest, also known as a will challenge, is when someone raises a formal objection to the validity of a will.
And since wills are governed by local legislation, the process to contest a will in Ontario may be different from contesting a will in British Columbia or Saskatchewan. In this article, we’ll unravel Ontario will disputes, grounds for contesting a will, the role of executors and beneficiaries in challenges, and other aspects of the estate litigation process in Ontario.
Who can contest a will in Ontario?
According to Ontario’s Rules of Civil Procedure, if you have a financial interest in an estate, you are eligible to contest the will. Having a "financial interest" in an estate generally means you have a potential monetary claim or entitlement to estate assets. This can include named beneficiaries in a will, individuals who would inherit under intestacy laws if there was no valid will, creditors of the estate, and in some cases, even contingent beneficiaries.
How do you know if you have a financial interest in an estate?
To have financial interest in an estate, you can be any of the following:
- The spouse of the deceased (common-law partners may not be eligible)
- A child, descendant (such as a grandchild) or dependant of the deceased
- Someone named in the will or named in a previous version of the will
- Someone who has a share in the estate if there is no will
- A creditor
Learn more about beneficiary rights in Ontario →
How long does a person have to contest a will in Ontario?
If you qualify for a financial interest in the estate, you have the standing or legal right to contest a will in Ontario. But you must do so within two years of the date you became aware of the will.
Grounds for contesting a will
If you have a valid interest in the estate, there are several grounds that can serve as a foundation for challenging the will and the will-maker (known as the testator).
- The testator lacked the testamentary capacity to make a will. Testamentary capacity is someone’s ability to understand their own will, estate, and the claims of those who would expect to benefit under their will. If it can be proven that the testator lacked the requisite testamentary capacity when they made their will, the will becomes susceptible to contestation.
- The testator was pressured or exploited to make their will. This is called undue influence and involves examining whether one or more individuals may have used their relationship with the person who created the will to coerce or manipulate them into making decisions that did not reflect their true wishes.
- The will is proven to be “fake”. If fraudulent activities like forgery, misrepresentation, or deceit played a role in the creation or execution of the will, there are grounds for contestation.
- The will does not meet the legal requirements for validity. When there is improper creation and execution of a will, and the will was not made based on legal requirements, it can be challenged and potentially deemed invalid.
Can a child contest a will if excluded in Canada?
Without being named in the will, a child of someone who has passed away still has a financial interest in the estate and so has the legal standing to contest. But exclusion is not grounds for contesting a will.
Testamentary freedom means anyone has the right to choose who is included in their will, how their estate is distributed and any other wishes in their estate plan. It does not, however, apply to power of attorney.
While a dependent child can claim dependant’s support against the estate, an adult descendant does not have grounds to challenge a will just because they have been excluded from it.
The Legal process for contesting wills
Step 1: Gather evidence to support your claim
If you believe you have grounds for invalidating a will in Ontario, you must provide evidence to support your claim in court. Once you have evidence, you can move forward to the next step.
Step 2: File a notice of objection
If probate is required, probate laws and regulations in Ontario dictate that someone cannot assume the role of an estate trustee without first receiving a certificate of estate trustee.
Before a certificate has been issued, you must file a notice of an objection with the court, signed by you or your lawyer, stating the nature of your financial interest in the estate and your reason for contesting the will.
If an estate trustee has already been issued a certificate of appointment, you must file a motion to return the certificate. This will ensure the estate settlement process is paused until the will challenge can be addressed.
Step 3: File a notice of appearance
Since you filed a notice of objection, you have 20 days to file a notice of appearance from that point.
Filing this notice confirms that you are contesting the other person’s application for a Certificate of Appointment of Estate Trustee, and you intend to proceed with challenging the validity of the will in court.
The challenge will be dismissed if this form is not filed within the 20-day window.
Step 4: Court proceedings
The person who applied to be the estate trustee now has 30 days to bring a motion for directions.
The court's response to a motion for directions will provide a clear path forward, including the next steps to be taken, timelines, and sometimes how to handle specific assets within the estate.
Potential outcomes and considerations
There are generally three possible outcomes to a will challenge.
- Your claim is successful. Court orders are issued in response to your challenge, and the estate covers your legal costs.
- Your claim is unsuccessful but has merit. The estate might reimburse your costs, but your challenge lacked the grounds or evidence needed to revoke the will.
- Your claim is unsuccessful and deemed without merit. The court may order you to pay not only your own costs for the challenge but also the successful party’s legal costs.
Impact of will challenges on beneficiaries and estate
Challenging a will’s validity can be a complex and emotionally draining process. It can cause conflict between family members, stress among friends, and possibly drain personal and estate assets because of legal costs.
While an executor and estate trustee who is also a beneficiary may waive their executor fee, bringing in legal assistance to settle will contests can still eat into estate assets.
How much does it cost to challenge a will in Ontario?
The cost of contesting a will varies depending on the case, the jurisdiction, and the lawyers involved. A fee breakdown would involve multiple elements of the case, such as legal fees, court fees, and expert witness fees.
If a lawyer assists you in contesting a will, you will either be charged a flat fee for the will contest or an hourly rate. The bill from your lawyer will include the disbursements they take care of during the case, such as court filing fees, fees to serve documents and expert witness fees.
If you contest a will without a lawyer, you will need to pay all associated fees yourself.
Seeking legal advice on will disputes
If you’re unsure whether you have grounds to contest a will or if you have a financial interest in the estate, you can consult a lawyer and seek their advice.
Lawyers will be able to provide their expertise on your case and help determine if your case is viable. This can be especially helpful if your challenge may be overturned because of newer legislation such as Bill 245.
Make your Willful will defensible
Any will can be contested, but the burden of proof is on the person who contests the will to prove their case.
It can be worrying to think about your will getting contested. But as long as you make your will based on the legal requirements of your province while you are of sound mind, the chances of it being successfully contested go down significantly.
All Willful documents are created with templated clauses from legal advisors across provinces and regularly reviewed in collaboration with regulatory bodies like the Law Society of Ontario. This ensures that your will is legal, valid, and defensible when completed in adherence to the recommended guidelines, which include appropriate signing, witnessing, and testamentary capacity.
Not only is your Willful will easy to make and affordable, but you can have peace of mind knowing it meets all the requirements of your province.
