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When a person passes away, one of the first things to be done is to determine who has been made executor of the estate. The executor is responsible for administering the estate, but this is not always a smooth process. Wills are complex legal documents. A good will should be clear and unambiguous, but this is not always the case. Sometimes, there may have been a mistake in the text of a will or a change in circumstances that arose after the will was originally drafted. In either case, there are ways for beneficiaries who think they’ve been left out of a will to challenge it successfully before probate court judges. Here’s what you need to know about how challenging a will works.

A will does not have to be fair

Before challenging a will, really think about the reason you want to challenge it. It’s important to be clear on this to help your legal counsel determine the best course of action – or if there is any course of action for relief available at all. There are specific grounds on which to challenge a will in Ontario. Individuals who simply find that a will is unfair, however, may be out of luck. Testamentary freedom dictates that the person making the will, the testator, is able to leave their estate to whomever they wish.

You can’t just challenge any will

You can challenge a will only if you have standing. Standing means that you are someone with rights affected. In some jurisdictions, this may be stricter, but in Ontario, the Rules of Civil Procedure essentially allow anyone with a financial interest in the estate to contest the validity of a will. This is set out in rule 75.01, which reads:

75.01 An estate trustee or any person appearing to have a financial interest in an estate may make an application under rule 75.06 to have a testamentary instrument that is being put forward as the last will of the deceased proved in such manner as the court directs.

The grounds on which you can challenge a will in Ontario

There are a few reasons why an individual may be successful in their will challenge. For instance, if someone exercised undue influence to take advantage of the testator while the will was being prepared, that may be grounds to declare the will invalid. In other instances, the deceased may have lacked capacity at the time of making the will, which puts into question its reliability and if it was truly a reflection of the testator’s desires.

The testator may not have been influenced by another person or lacked capacity, but the terms in their will may be unclear and ambiguous. A judge can sometimes interpret these provisions into something that makes sense, but where this is not possible the particular provision might be declared invalid. Other common grounds to challenge a will in Ontario include mistake, fraud and public policy reasons.

The most common grounds to challenge a will in Ontario are incapacity and undue influence

In Ontario, the most common grounds for which individuals tend to challenge wills are undue influence and incapacity. Undue influence is when the testator is influenced by another party in the drafting of their will to the point that the final will does not truly reflect the testator’s intention. Incapacity means that the testator was unable to be independent and manage their own affairs at the time of drafting the will.

What is the first step for challenging a will?

Ideally, a will challenge will commence before the estate is administered. Individuals interested in challenging a will should file a notice of objection with the Estates Registrar as soon as possible after the testator’s death. This will effectively halt the estate proceedings until the matter of the will challenge has been taken care of.

This is not to say that it is not possible to challenge a will after the estate has been administered. Sometimes this is required because otherwise, you might not know what the content of the will is to challenge. In this instance, you would begin the process of challenging the will by filing a notice of application.

You have two years to challenge a will in Ontario

As with many things in law, there is a limitation period for individuals to contest the validity of wills. In Ontario, that limitation period is two years from the date the potential challenger discovered their case. Note that this is not two years after the death of the testator. This is because not all will challenges will be apparent right away. The limitation period leaves time to ensure potential challengers can get their affairs in order, but it also limits the ability to challenge so that the estate does not need to deal with claims indefinitely.

Whoever challenges the will may be at risk of paying costs

Remember that legal disputes can be costly, and if you are unsuccessful in your will challenge you may be liable for your own legal costs as well as the estate’s legal costs. This is why it is important to ensure you have a good, solid case before proceeding. Consider obtaining legal representation to ensure you have a case worth pursuing. Getting a legal opinion earlier can help save you time and money down the line in the event your case has no merit.

Assess Your Case for Challenging a Will with the Estates Lawyers at Derfel Estate Law in Toronto

At Derfel Estate Law, we understand how difficult it can be to handle the affairs of a loved one’s estate after they have passed. Our experienced team of estate lawyers is always up to date on estate administration requirements and can assist with will challenges. We are committed to providing our clients with personalized attention, which means we will work closely with you through the duration of your case and keep you informed at every step of the way. Contact us by phone at 416-847-3580 or reach us online to discuss your estate needs.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estate Law

Contact Derfel Estate Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.


95 Barber Greene Road, Suite 300
Toronto, Ontario,
M3C 3E9

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