There are only a very few grounds that a will in Ontario can be successfully contested through the Courts.
Judges do not have the discretion to set aside Wills simply on the basis that they are unfair or unexpected or do not leave the estate to the children of the deceased.
The basic rule in Ontario is that a Will that is validly made will be enforced. Wills that are not validly made will be set aside. Also, there are exceptions to the basic rule that a validly made Will will be enforced, for instance for married spouses who may elect to take under the Family Law Act rather than under the Will.
Claims by married spouses and dependents
A completely different matter from an actual will challenge is a claim by a person who was financially dependent on the deceased and/or a legally married spouse of the deceased, that the deceased did not make adequate provision for them in the deceased’s will or estate. These claims are discussed in detail on a separate page, here.
Left out business partners and ‘contributors’
Another different class of claims are made by people who contributed (usually funds or effort) to the ‘farm, business, investment …’ of the deceased and who were promised something in return by the deceased (re-payment, share of gains, co-ownership, compensation for effort) … and who now find themselves left out of the will. Sometimes this is because the deceased did not make a will, or the will was made before the promise was made, or the deceased has forgotten or broken the promise. Normally the claimant says they were promised something and yet this something is not mentioned at all in the will.
These claims are usually framed as ‘constructive trust’ or ‘unjust enrichment’ claims and strictly speaking are not ‘will challenges’. As equitable claims they are more like claims for repayment of a debt, which must be paid before the will deals with the remaining estate. Trust claims like these are often not easy to prove, but they are usually more straightforward than an actual attack on the validity of the will itself. The key to success lies in proving the original ‘deal’ that lead the contributor to contribute to the benefit of the deceased. If there is documentary evidence (emails, letters, agreements even) that makes a large difference to the strength of the claim.
Testatmentary Freedom
Ontario is a ‘testamentary freedom’ jurisdiction. Subject to the testator’s obligations under family law to a spouse or child, or to make provision in their Will for a dependent (someone that they support financially at the time of their death or should be supporting at the time of their death), testators are generally free to dispose of their estate as they see fit. This contrasts, for instance, with British Columbia, which has much greater restrictions on testamentary freedom (and hence many more successful Will challenges) than Ontario.
Generally, a testator can allocate their estate unequally among their children or even disinherit a child (whether estranged or not).
Financially independent adult children do not have a presumptive right anything from a parent’s estate.
Mutual wills & the testatmentary freedom of a surviving spouse
Not infrequently spouses agree with each other on a common estate plan – for instance, ‘your children and my children will share equally when we both die’ – and they make Wills accordingly. If the Wills are ‘identical’ they are often referred to as ‘mirror wills‘.
Sometimes, but not always, they contractually agree with each other that the surviving spouse will not change their Will after the death of the first spouse. When they make such a contract, this is an instance of testamentary freedom is limited by contract, with a concept known as ‘mutual Wills‘. A testator who wants to bind their surviving spouse to such a scheme should do more than use a mirror Will. They should use something like a proper contract or a life interest (trust) in lieu of simply having their entire estate pass to the surviving spouse.
Absent clear proof of a contract between the spouses not to change a Will after the death of the first spouse to die, the surviving spouse is free to change their Will (and beneficiary designations and other estate plans) without restriction as to ‘what the first spouse to die wanted’. In other words, not all mirror Wills are mutual Wills. Mirror Wills that are not mutual Wills and can be changed by the surviving spouse.
Setting aside invalid Wills: is this Will a valid Will?
The primary grounds for contesting a Will in Ontario on the basis that it is invalid or revoked:
- The Will was not signed by the testator (the deceased) or the Will was not properly signed
- The Will was not witnessed or not properly witnessed
- The Will was voided, for instance by a subsequent marriage (caution – these rules changed in Ontario in 2022)
- The Will was revoked, for instance by the testator making a subsequent Will (only a person’s last Will usually governs their estate – therefore, it is very important to determine if a will really was “the last will and testament”)
- The testator ‘lack testamentary capacity’ to make the Will. However, note that testamentary capacity is a fairly low threshold of understanding and awareness of the testator’s assets, relations, and obligations. A detailed knowledge by the testator of the value of their assets is not required, and merely being “ill” or having experienced some age-related cognitive decline or being on ‘pain medication’ is not sufficient to establish incapacity. The mere fact that the testator is ‘old’ and has received a diagnosis for ‘some’ onset of mild dementia will not be sufficient to prove lack of testamentary capacity.
- The Will was ‘procured’ by undue influence: if a beneficiary exerts undue influence over the testator, especially someone who is vulnerable or infirm, it may be possible to have the will set aside. Classic cases that give rise to concern are when, for instance, an elderly person suddenly bequeaths their estate to their much younger new caregiver. Caution: it is difficult to prove undue influence, although obvious factors such as the beneficiary drafted the will (or told the drafter what to write) are significant; less compelling but plausible evidence can be such things as the beneficiary made all arrangements for the testator to make a will, instructed the testator what the will should say, etc.). Further, it is unlikely to prove undue influence if the alleged influencer does not benefit, directly or indirectly, from the changed Will. Proof of undue influence requires proof that the influencer’s intentions overwhelmed or displaced the thoughts or intentions of the testator.
The presumption of validity
A properly signed Will is presumed valid. The obligation to prove that it should not be upheld lies with the challenger. This is enormously important.
In addtion, the challenger must have at least sufficient ‘evidence’ to raise a challenge before the Court will grant further access to the private medical or financial records of the deceased. The challenger cannot start a fishing expedition looking for evidence (such as medical records) that they hope will prove lack of capacity or undue influence.
Will changes later in life
The combination of the presumption of validity and testamentary freedom means that testators can change their estate plans late in life and disinherit ‘family’ who years before thought that they would inherit substantial amounts. This is particularly true for children who are somewhat estranged from either a parent who later re-marries, or, a step parent in a blended family if their biological parent died first. Often, these changes cannot be challenged successfully.
Lawyers who assist an elderly client who makes a significant change to their estate plans, and especially if this change results in the disinheritance of someone who might have a reasonable expectation of inheritance should be very careful. Good notes with respect to the capacity of the testator, the freedom from undue influence, and their instructions to the solicitor are essential. Best practices include proper documentation, including perhaps video recording, of the instructions and rationale for the change.
Possible but never easy
Will challenges in Ontario are possible, but never easy. This is especially true of Wills which, on their face, are validly made and executed, but which are challenged on the basis that they were made under undue influence by someone close to the deceased, such as a common law spouse or caregiver adult child. These cases are highly fact dependent, and the burden of proof that must be met by the challengers is difficult to meet unless they have unusual evidence, especially documentary or video evidence.
Having some medical evidence before you start the challenge is extremely helpful, and almost a necessity from a practical perspective.
Please consult us for an analysis of your situation and advice on whether to contest a will and if so how to proceed.