Will Challenges in Ontario

Have you been suddenly disinherited by a parent, spouse, relative, or other close friend under suspicious circumstances? 

Do you have reason to believe that a will governing an estate under which you may have an interest was not properly executed? 

Are you concerned that the person who made the will lacked the mental capacity to do so? 

Was the person who made the will unduly influenced by a person seeking to benefit under it? 

If you have answered yes to any of these questions, you may have a claim to challenge the validity of the will in court. If so, we can help. 

We know that it can be very distressing dealing with these issues especially following the death of a loved one. We are dedicated to offering our clients compassion and support in addressing these emotional issues while advocating for them in and out of the courtroom. 

Below is a general overview of the most common will challenges: improper execution, lack of testamentary capacity, suspicious circumstances, and undue influence.

Was the will properly executed?

The answer to this question depends on the type of will at issue. 

Broadly stated, Ontario law differentiates between what are often referred to as: (1) “formal” wills (with strict statutory requirements for execution); and (2) “informal” or “holographic” wills. The legal requirements for the validity of each type of will is different. 

In either case, a will may be successfully challenged in Ontario if it can be shown that one of the formal requirements for execution has not been met. 

Formal Wills

The requirements for formal wills are set out in Ontario’s Succession Law Reform Act, R.S.O. 1990, c. S.26 (“SLRA”). Under section 4 of the SLRA, (and with the exception of holographic wills discussed below) for a will to be valid it must be signed by the person making it (called the “testator”) and at least two witnesses in the ‘presence’ of the testator.

As a result of recent amendments to the SLRA, the ‘presence of witnesses’ requirement may be satisfied through the use of audio-visual communication technology (e.g. using Zoom, Skype, etc.) if at least one witness is a lawyer (or paralegal) and the making or acknowledge of the signature and the subscribing of the will are contemporaneous. For example, this requirement may be satisfied by signing or subscribing complete, identical copies of the will in counterparts on one Zoom call in which the testator and both witnesses are present. The counterparts of the will collectively constitute the will. 

Formal wills can be challenged on the grounds that they do not meet all of the requirements of formality required by the SLRA. For example, if the will was not contemporaneously witnessed, or only witnessed by one person, this will usually be sufficient to have the will declared invalid. 

Holographic Wills 

Unlike some other provinces, holographic wills are valid in Ontario provided they satisfy certain basic requirements. 

Under s. 6 of the Succession Law Reform Act, a testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. A valid holographic will could conceivably be made on a scrap of paper or even a napkin. 

Holographic wills can be successfully challenged on a number of grounds, including: (1) if they are not wholly in the handwriting of the testator; (2) if they are not signed by the testator; or (3) if they do not contain a deliberate or fixed and final expression of intention as to the disposition of property on death. 

For example, the court will find a holographic will to be invalid if it is partially typed and partially handwritten. Handwritten notes about future changes to a will may or may not be found to be a valid holographic will or codicil depending on the circumstances. Even the handwriting of the testator could give rise to claims of forgery, necessitating expert evidence on the testator’s handwriting. 

Did the testator lack capacity to make a will? 

Wills can always be challenged on the basis that the testator lacked testamentary capacity at the time that the will was purportedly made.

In general terms, a testator must have sufficient mental capacity to understand the nature of their property and the persons who would normally and reasonably be expected to be beneficiaries under his or her estate. 

The test for testamentary capacity was first set out in the seminal case of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, at p. 565, in the following terms:

It is essential to the exercise of such a power [of testamentary capacity] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.  [Emphasis added.]

Whether a testator had testamentary capacity at the time of making a will is fact-driven. Evidence from family members, close friends, other acquaintances, medical professionals, the drafting solicitor, and even expert capacity assessors may all be necessary to resolve this question. 

For example, if a testator included a family cottage that he or she had sold 20 years previously in a newly-created will, or if the testator had forgotten about the existence of one of his or her children in making a will, these are both circumstances pointing to a lack of capacity to make a will. However, if the testator was eccentric and believed that our society was formed by “Ancient Aliens”, this may or may not be sufficient to establish the lack of testamentary capacity. 

The level of capacity required to make a will also varies depending on the complexity and value of the testator’s estate. It might require a lower level of capacity to make a will regarding an estate with few assets, as opposed to the level of capacity required when dealing with a much more complex estate with various trusts, properties, investments, and high-value assets. 

“Suspicious circumstances”

An important aspect of testamentary capacity is the testator’s “knowledge and approval” of the contents of a will. If the will was made under “suspicious circumstances”, the court will place a higher burden on the person asserting the validity of the will to show that the testator had knowledge of and approved the contents of the will. 

Suspicious circumstances may be raised in one of three general ways: (1) in the circumstances surrounding the making of the will; (2) in circumstances tending to call into question the capacity of the testator; or (3) in circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. The most commonly recognized example of suspicious circumstances is when a person who is instrumental in the making of a will obtains a benefit under it.

Undue influence 

Similarly, a will may also be successfully challenged if it is shown that someone coerced or defrauded the testator into making it. Undue influence exists when the will of a testator is vitiated so that the will does not reflect his or her true testamentary intentions. As has been frequently cited, undue influence exists if the testator would say “this is not my wish, but I must do it”. Undue influence can be proven by both direct or circumstantial evidence. 

The foregoing is only a broad overview of the ways in which a will may be successfully challenged in Ontario. Please contact us for a free initial consultation about your particular situation.