Wills, Estates, Trusts Law
Will Challenge

A will challenge is a proceeding in which someone disputes the validity of the purported last will and testament of a deceased. The common grounds for challenging the validity of a Will are:

  • lack of testamentary capacity;

  • lack of approval or knowledge of the contents of the will;

  • the presence of undue influence;

  • the authenticity of the Will is questionable due to forgery or fraud; or

  • non-compliance with the requirements of due execution as set out in Part I of the Succession Law Reform Act (SLRA).

The onus of proof of testamentary capacity rests on those propounding the will. They must establish, on balance of probabilities, that the deceased had the requisite level of testamentary capacity when the will was executed. When undue influence is alleged, the onus of proof is upon those alleging the undue influence.

Suspicious Circumstances

Suspicious circumstances are usually considered within the context of a Will challenge based on undue influence or lack of testamentary capacity. Suspicious circumstances include such matters as to age and medical condition of the testator, the opportunity of others to exercise influence over the testator, and the significance of changes made in the will as compared to earlier versions. The presence of suspicious circumstances operates to remove the normal presumption of capacity, including the rebuttable presumption that the testator knew and approved of the contents of the Will. If suspicious circumstances are found to exist, there is a very heavy onus on those propounding the Will to satisfy the Court as to its validity.

If the suspicious circumstances relate specifically to mental capacity, the presumption of testamentary capacity no longer applies, and the propounder of the Will has the legal burden of establishing capacity. The suspicions must be removed by proof of the testator’s knowledge and approval of the contents of the will.


Will Challenges Proceeding

Proceedings to challenge a will are commenced in the Superior Court of Justice in the jurisdiction where the deceased last resided before dead. If a certificate of appointment of estate trustee has not yet been obtained, a notice of objection must be prepared and filed with the court as soon as possible. If a certificate of appointment has been obtained, an application is filed to require the certificate of appointment been returned and estate distribution be stayed in order that the issues relating to the validity of the will may be determined. The notice of objection will remain effective for a period of three years after it is filed. Under the Rules of Civil Procedure, any third party who has an interest in the estate are allowed to submit a Statement of Submission of Rights to the Court.

If parties to the issues to be tried reach a settlement, any person who has submitted the person’s rights to the court must either provide a written consent to the settlement or must be personally served with a notice of settlement. If the person served objects to the terms of settlement, the person must serve and file a notice of rejection of settlement, stating the reasons why the settlement is rejected. This must be served and filed within 10 days of service of the notice of settlement. The court will not issue a judgment on consent approving settlement of a matter without either:

  1. the written consent of any person who has submitted the person’s rights to the court; or

  2. in the absence of such consent, an affidavit of a solicitor of record in the matter attesting that a notice of settlement was personally served on the person and no rejection of settlement was filed.


Mandatory Mediation Requirement & The Rules Regarding Who Pays for Will Challenges

The Rules of Civil Procedure provides for mandatory mediation of estates, trusts, and substitute decision matters that are commenced in the City of Toronto and apply to the following types of proceedings:

a contested application to pass accounts;

formal proof of a testamentary instrument;

an objection to the issuing of a certificate of appointment;

a return of the certificate of appointment;

The costs of an application to interpret an ambiguous provision in a will are usually borne by the estate, the necessity for such proceedings having been caused by the testator, not the conduct of the litigants. Other than that, usually the losing party, not the estate is responsible to pay for cost, on a substantial indemnity basis similar to other type of civil litigation cases.

Will Challenges are highly technical with a lot of legal issues involved. HTW Law can help. Call us now at 647-849-6582 or send us a message if you have some legal questions / inquiries or want to schedule an appointment with HTW Law.


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