Area of Law: Wills, Estates and Powers of Attorney
Answer # 1170
Contesting or challenging a WillRegion: Ontario Answer # 1170
If you are not provided for in the Will of a family member or a close friend, you may want to consider challenging, or contesting, the validity of the Will. Contesting a Will means applying to the court to have the Will deemed invalid. The type of application you must make depends on whether the Will has been probated. If it has been probated, you must make a motion in court for the return of the Certificate of Appointment of Estate Trustee and move for direction to challenge the Will. If the Will has not been probated, you must file an application, called a Notice of Objection, with the registrar to prevent it from being probated until your issues have been dealt with.
While there may be a good reason you were left out, there may also be other possibilities. Since contesting a Will is expensive and time-consuming, it is important to get legal advice before you take any related steps. In addition, contesting a Will requires formal steps and procedures, and will only be successful if you can provide evidence to support your claim. Because the maker of the Will is deceased, any statements that you allege the deceased said, must be corroborated (confirmed) by another person. As well, you may have to go to mediation and try to resolve the issues. If the case is not settled at mediation, it will then go to trial.
Another consideration is the cost of challenging a Will. In the past, the costs of all parties were automatically deducted from the estate. This has changed in parts of Canada. If the court feels that the case was without merit, it may order you to pay not only your own costs, but to also pay the legal bill of the other parties.
It is important to understand that if you are successful in having a court rule that the Will is not valid, a previous Will, if one exists, will determine how the estate will be dealt with. Therefore, it is a good idea to know what provisions were made in a prior Will before you begin. Furthermore, if there was no prior Will, the deceased will be considered to have died intestate. This means that the estate will be dealt with under the Ontario Succession Law Reform Act. Again, it is important to know whether you are entitled to any of the assets under these laws, before you challenge the Will.
When can a Will be challenged?
Judges do not have the discretion to set aside Wills on the basis that they are unfair, unexpected or do not leave the estate to the children of the deceased. The rule in Ontario is that a Will that is validly made shall be enforced. Wills that are not validly made will be set aside.
A person who “appears to have a financial interest” in the estate may contest, or challenge, a Will. This will include any person who could claim to be a dependent of the deceased or could be entitled to inherit under an intestacy if the will was found to be invalid or any person who could claim to be a dependent of the deceased.
Common grounds for challenging a Will
There are several reasons why a Will may be challenged. Although each case may be different, there are a number of general grounds which are used, which include the following:
1. Lack of mental capacity
If the testator did not have the mental capacity to know what he or she was doing, it may be appropriate to claim that the he or she:
- did not know they were writing and signing their Will, or
- did not know and understand the nature and effect of the gifts made under the Will, or the nature of the relationship with those persons named in the Will.
2. Undue influence
Where the Will represents a dramatic change to a previous Will, or to the previous intentions indicated by the deceased, you may want to look at the circumstances surrounding the signing of the Will. A person’s Will may not be valid if it was signed under pressure from a family member or other person.
3. Improper execution of the Will
If you believe the Will was not prepared, signed or witnessed properly according to the law, you may be able to challenge the Will based on these grounds.
It may also be possible to challenge a Will if you believe documents were falsified or signatures forged, or if changes were made to the Will based on misinformation given by a beneficiary.
5. No provision for dependents or spouse
In most of Canada, there are laws that dependents must be taken care of, and spouses may have a claim to part of the estate. Therefore, if there was no provision made for dependents, the Will may be challenged. Even adult children may challenge a Will if the division of property is considered to be unfair.
If the language used by the maker of the Will is unclear, and you feel it is not being interpreted correctly, it may be necessary for a court to determine the intent and meaning.
New rules for previously ‘invalid’ Wills
Bill 245 Accelerating Access to Justice Act, 2021 came into effect January 1, 2022, making a number of changes to the Succession Law Reform Act (SLRA).
One important change is that previously, if a Will was not perfectly executed and did not follow every single rule, it was considered “technically invalid’.
As of January 1, 2022, courts can deem a Will that was ‘technically invalid’ as legal. For example, courts could declare a Will that was only signed by one witness instead of two legal. This is known as “substantial compliance”.
For more information about Wills, visit the Ontario Ministry of the Attorney General website.
Getting the legal help you need
If you think you have been unfairly excluded from a Will or are questioning it’s validity, to determine whether you have legal grounds to challenge the Will, you should consult a lawyer.
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