Challenging a will is not about disagreeing with someone's testamentary choices. You cannot challenge a will simply because you think it's unfair or because you expected to receive more. Ontario law generally respects testamentary freedom—the right of competent adults to dispose of their property as they wish.
However, wills can be challenged on specific legal grounds, and dependants may have separate claims for support regardless of the will's validity. Let's examine both paths.
There are several recognized grounds for challenging whether a will is legally valid:
For a will to be valid, the testator (the person making the will) must have had the mental capacity to understand what they were doing. This requires:
Understanding the nature of making a will: The testator must understand they're creating a document that will distribute their property after death.
Knowledge of the extent of their property: They must have a general understanding of what they own—not necessarily precise values, but awareness of their significant assets.
Understanding the claims of people who might expect to benefit: They must be able to appreciate who would naturally be expected to receive something from their estate (spouse, children, etc.).
Absence of delusions affecting the disposition: The testator must not be suffering from delusions that affect how they dispose of their property.
Capacity is assessed at the time the will was made, not before or after. Someone may have periods of lucidity even while suffering from dementia or other cognitive impairment.
Red flags that might indicate lack of capacity include:
The test for capacity is relatively low—it's easier to meet than the standard for capacity in other contexts (like managing property). Courts presume capacity in adults. If you're challenging on this ground, you bear the burden of proving the testator lacked capacity.
A will can be set aside if it was made as a result of undue influence—essentially, coercion that overpowered the testator's free will.
Undue influence goes beyond persuasion or even strong pressure. It requires proof that:
Undue influence might involve:
Proving undue influence is difficult. Mere suspicion isn't enough. You need evidence of:
Courts recognize that proving undue influence is challenging because it often occurs in private. Circumstantial evidence can be sufficient if it creates a compelling inference.
Even if the testator had capacity and wasn't unduly influenced, a will can be challenged if they didn't actually know or approve of its contents.
This might occur if:
Courts look for "suspicious circumstances" that raise questions about whether the testator knew and approved of the will's contents:
Ontario law requires specific formalities for a will to be valid (under the Succession Law Reform Act):
In writing: The will must be in writing (typed or handwritten).
Signed by the testator: The testator must sign it, or someone must sign on their behalf in their presence and by their direction.
Two witnesses: The will must be signed in the presence of two witnesses, who must also sign in the testator's presence.
Witness requirements: Witnesses must be present at the same time and must be impartial (beneficiaries or their spouses cannot be witnesses—if they are, they typically lose their gift under the will).
A holograph will (entirely handwritten and signed by the testator) doesn't require witnesses, but must be entirely in the testator's handwriting. Even typed portions can invalidate a holograph will.
Challenges based on formal defects are usually straightforward—either the formalities were met or they weren't. However, courts have limited power to cure certain formal defects in some circumstances.
A will procured through fraud or that was forged is invalid. Fraud might include:
Fraud allegations are serious and require strong evidence.
A will can be challenged on the basis that it was revoked:
By a later will: If there's evidence of a later will that revokes the challenged will
By destruction: If the testator intentionally destroyed the will with the intention of revoking it
By marriage: Generally, marriage revokes a prior will (unless the will was made in contemplation of that marriage)
By divorce: Divorce typically revokes gifts to a former spouse and any appointment of them as executor
Even if a will is valid, dependants may have a separate claim for support from the estate under Part V of the Succession Law Reform Act. This is distinct from challenging the will's validity—you're asking the court to order the estate to provide you with adequate support, regardless of what the will says.
Eligible dependants include:
You must have been a dependant of the deceased—meaning:
For spouses, dependency is generally presumed. For adult children, you must show actual dependency.
Courts consider numerous factors when determining whether to order support and in what amount:
Adult children: Adult children can claim if they were financially dependent on the deceased. Disability, illness, education, or other circumstances may support continued dependency.
Common-law spouses: Must meet the definition under the Succession Law Reform Act (three years of cohabitation, or less if there's a child and a relationship of some permanence).
Second families: Estates are often caught between obligations to a current spouse and children from a previous relationship.
Estranged family members: Estrangement doesn't necessarily eliminate support obligations, though it's a factor courts consider.
Estate litigation is subject to strict time limits:
You must file a dependant support claim within six months of the grant of probate (or administration if there's no will). This deadline is absolute absent special circumstances. Courts rarely extend it.
Missing this deadline typically means losing your right to claim, regardless of how meritorious your case might be.
There's no specific limitation period for will challenges, but delay can hurt your case:
As a practical matter, challenges should be brought as soon as possible after you become aware of grounds to challenge.
Before starting litigation, assess:
If you're aware of grounds to challenge a will before probate is granted, you can file a notice of objection to prevent probate being issued while the challenge is resolved.
If probate has already been granted, you can seek to challenge it or revoke it.
Estate litigation typically involves:
The discovery process may include:
Estate litigation often involves mandatory mediation. Even when not mandatory, mediation can be valuable—litigation is expensive and uncertain, and settlement often benefits everyone.
If settlement isn't reached, the matter proceeds to trial where a judge decides the issues.
Successful estate litigation requires compelling evidence:
Estate litigation can be expensive. Costs to consider:
Legal fees: Estate litigation is complex and lawyer's fees can be substantial—often tens of thousands of dollars, sometimes much more in complex cases.
Disbursements: Court filing fees, expert witness fees, transcripts, medical records—these add up.
Adverse costs: If you lose, you may be ordered to pay a portion of the other side's legal costs.
Estate depletion: Litigation costs often come from the estate, reducing what's available for beneficiaries.
Courts have discretion in awarding costs. In estate litigation:
Before resorting to litigation, consider:
Direct negotiation between parties (usually through lawyers) can resolve disputes without court involvement.
A neutral mediator helps parties reach a settlement. Mediation is faster, cheaper, and less adversarial than litigation.
Parties can agree to have an arbitrator make a binding decision without going to court.
Before challenging a will, honestly assess:
If you're considering challenging a will:
Act quickly: Don't delay—time limits are strict for dependant claims, and delay hurts will challenges.
Preserve evidence: Collect relevant documents, identify witnesses, secure medical records.
Don't distribute estate assets: If you're an executor and someone is challenging the will, do not distribute assets until the challenge is resolved.
Get legal advice early: Estate litigation is complex and fact-specific. Early legal advice can help you understand your options and avoid costly mistakes.
Being an executor when the will is challenged creates unique challenges:
At Sheard Law, John Sheard has successfully represented clients in complex estate litigation matters, from will challenges based on capacity and undue influence to dependant support claims. His experience includes cases involving substantial estates, family business succession disputes, and multi-generational family conflicts. He understands that estate litigation involves not just legal issues but deeply personal family dynamics, and works to achieve resolutions that protect clients' interests while minimizing unnecessary conflict and costs where possible.
At Sheard Law, we understand that estate disputes involve not just money, but family relationships, grief, and questions of fairness and respect for the deceased's wishes.
Whether you're considering challenging a will, defending against a challenge, or pursuing a dependant support claim, we can help you:
Contact Sheard Law today to schedule a consultation. Call 416-860-9990, send us an email or fill out our intake form to get started. Let us help you understand your options and protect your rights.
This article provides general information about estate litigation in Ontario. It is not legal advice. For advice about your specific situation, consult with a qualified lawyer.
