Contesting a will is a serious legal matter that often arises during an already emotionally difficult time. If you believe a loved one’s will doesn’t reflect their true intentions or may have been the result of undue influence or error, Ontario law provides avenues to challenge it. Below, we’ll explore how to contest a will in Ontario, the legal grounds for doing so, and what steps you need to take.
Legal Grounds to Contest a Will in Ontario
To successfully challenge a will, you must have legal standing—usually as a spouse, child, or other financial dependent of the deceased. Under Ontario law, there are several valid grounds for contesting a will:
1. Lack of Testamentary Capacity
The testator (person who made the will) must have been of sound mind at the time of writing the will. According to Ontario’s Succession Law Reform Act (SLRA), a valid will requires the testator to understand the nature of making a will, know the extent of their assets, and comprehend the impact of distributing them.
Ontario Ministry of the Attorney General – Making a Will
2. Undue Influence
If someone manipulated or pressured the testator into changing their will, that could make it invalid. This is often difficult to prove and typically requires affidavits or evidence of coercion.
3. Lack of Proper Execution
Ontario law requires a will to be signed in the presence of two witnesses who also sign the document. If this process was not followed, the will could be ruled invalid.
4. Fraud or Forgery
If you suspect the will was altered or created fraudulently, a forensic review may be needed. Fraud is a serious allegation and must be backed by solid evidence.
5. Dependent Support Claims
Even if a will is technically valid, it can be contested under Part V of the SLRA if it fails to adequately provide for a dependent, such as a spouse, minor child, or adult child with a disability.
Source: Succession Law Reform Act – Part V
How to Contest a Will: Step-by-Step in Ontario
Step 1: Speak to an Estate Litigation Lawyer
Before taking any formal steps, consult an experienced will disputes lawyer to assess the merits of your case. They will guide you on deadlines and required documentation.
Step 2: File a Notice of Objection
You must file a Notice of Objection with the Ontario Superior Court of Justice before probate is granted. This stops the will from being executed until the matter is resolved.
Step 3: Begin Legal Proceedings
If the executor still moves forward with probate, your lawyer may file a notice of application to challenge the will, which officially starts the litigation process.
Step 4: Gather Evidence
This includes medical records (for capacity claims), witness statements, previous versions of the will, and any documentation related to coercion or fraud.
Step 5: Court Hearing and Settlement
Many will disputes in Ontario are settled outside of court through mediation, but if not, the case proceeds to trial. The court will review all evidence and make a determination.
What Damages or Outcomes Are Possible?
- Invalidation of the entire will or specific clauses
- Redistribution of the estate based on prior valid wills or intestacy rules
- Financial support awarded to eligible dependents
- Reimbursement of legal costs, depending on the outcome
How Long Do You Have to Contest a Will?
In most cases, you must act before probate is granted. However, if you’re making a claim for support under the SLRA, you have 6 months from the date probate is granted to file your claim.
Key Considerations in Inheritance Disputes
- These cases can take months to years depending on complexity.
- Evidence is critical—especially in undue influence and capacity cases.
- Legal fees can be high, and costs may be awarded against the losing party.
Final Thoughts
Contesting a will in Ontario is legally complex and emotionally taxing. However, with strong evidence and timely legal advice, you can seek justice if a will fails to reflect the true wishes of the deceased or violates the rights of dependents.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For personalized guidance, consult a licensed estate litigation lawyer in Ontario or visit the Ontario Ministry of the Attorney General.
