The death of a loved one can often trigger disputes among family members over the contents of the deceased’s will. Sometimes, ‘where there’s a will, there’s a law suit’. In Ontario, challenging a will is a complex process that requires a solid legal foundation and the guidance of an experienced estate litigation lawyer. This blog will walk you through the essentials of contesting a will, outlining who can challenge it, the valid grounds for doing so, and the steps involved.
Understanding Key Concepts: Wills, Estates, and Trusts
- Will: A legal document prepared by the ‘testator’ (the person making the will) to outline their wishes on how their estate should be distributed after their death. It usually names an executor; this person is to ensure the instructions in their will are followed.
- Estate: All the assets, property, and liabilities owned by the deceased at the time of their death.
- Trust: A legal arrangement that holds assets for beneficiaries, managed by a trustee. Unlike a will, a trust can be established and operated during the trust creator’s lifetime.
Who Can Challenge a Will in Ontario?
Not just anyone can contest a will. In Ontario, those who have a financial interest in the estate are eligible to challenge it. This includes:
- Spouses and dependents that relied on the deceased for financial support.
- Individuals who are beneficiaries of a previous will.
- Those entitled to inherit under ‘intestate’ (this means dying without a will) succession laws if no valid will exists.
Grounds for Challenging a Will
The courts in Ontario prioritise respecting the testator’s final wishes. However, under specific circumstances, a will can be declared invalid. Below are common grounds for challenging a will:
- Lack of Testamentary Capacity:
The testator must have had the mental capacity to understand the nature of their estate and the consequences of distributing it. Proving incapacity requires medical records showing cognitive decline or conditions like dementia at the time the will was created. However, cognitive impairments alone are not enough to invalidate a will unless it’s shown that they affected the person’s ability to make informed decisions. - Undue Influence:
A will may be challenged if the testator was pressured or manipulated into making decisions they would not have otherwise made. This is especially relevant if the will differs significantly from previous versions or excludes close family members unexpectedly. - Improper Execution:
For a will to be legally valid, it must meet formal requirements, including proper witnessing and signatures. If these steps are not followed, the will can be contested on the basis of non-compliance. - Fraud or Forgery:
A will may be challenged if there is evidence that signatures were forged or if false information was provided to the testator. - Failure to Provide for Spouses or Dependents:
Ontario law mandates that certain dependents must be provided for, even if the will’s instructions exclude them. Spouses, adult children, and financially dependent individuals can challenge a will if they have not been adequately considered. - Unclear Intentions:
If the language used in the will is ambiguous, the court may need to interpret the testator’s true intentions. This may involve consulting other legal documents or previous versions of the will.
Steps to Challenge a Will in Ontario
1. Consult with an Estate Litigation Lawyer
The first step is to engage an experienced lawyer who specialises in estate disputes. They will assess whether your claim has merit and guide you through the legal process.
2. File a Notice of Objection
Before a will has been probated, a Notice of Objection can be filed with the court registrar. This notice outlines your grounds for objection and prevents the probate process from proceeding until the issue is resolved.
3. Gather Evidence
Evidence such as medical records, witness statements, or prior versions of the will may be required to support your claim. If you are alleging undue influence or lack of capacity, corroboration from others who interacted with the testator is essential.
4. Court Procedures and Mediation
The court may require you to go through mediation to try to resolve the dispute before proceeding to trial. If mediation fails, the case will move forward in court.
5. Motion for Directions
In cases where further guidance is needed, the court may issue a Motion for Directions to outline the steps that both parties must follow during the legal process.
Potential Costs of Challenging a Will
Challenging a will can be expensive. Although in the past, legal fees were often deducted from the estate, courts are now more cautious about awarding costs. If the challenge is deemed frivolous or without merit, the individual contesting the will may be ordered to pay the legal costs for all parties involved.
Additionally, estate litigation is emotionally draining, since it involves family members or close associates disputing the wishes of the deceased person. For these reasons, it’s crucial to ensure your claim is strong and legal action is the best course of action before proceeding.
Changes in Ontario’s Succession Law Reform Act
The Accelerating Access to Justice Act, 2021 introduced important changes to Ontario’s estate laws. Courts can now validate wills that do not meet all formal requirements, provided there is evidence of the testator’s intent. This principle, known as substantial compliance, allows Courts to give acknowledge a will as valid even if it has minor technical deficiencies, such as missing a witness signature.
Final Thoughts: Seek Professional Guidance Early
Challenging a will is a serious decision that requires careful consideration. Working with a qualified estate litigation lawyer ensures that your challenge is handled efficiently and increases the chances of a favourable outcome. If you are considering contesting a will in Ontario, consulting a legal professional early in the process can help you understand your options and avoid unnecessary delays or costs.
Take the first step towards resolving your estate dispute—Find a Professional today through our BRT platform and connect with experienced estate litigation lawyers in Ontario.
Read about: Why You Need a Lawyer to Draft Your Will in Ontario?
