Contesting a will in Ontario is possible, but it is not simply a matter of disagreeing with how someone chose to divide their estate. The law starts from a strong presumption that a person is entitled to leave their property to whomever they wish. To successfully challenge a will, a person must have both the legal standing to do so and a valid legal ground. Understanding what those grounds are, and the strict deadlines that apply, is essential before deciding whether to proceed.
Who Can Contest a Will in Ontario
Not just anyone can challenge a will. To have standing, a person must have a genuine financial interest in the estate. This typically includes beneficiaries named in the current will, beneficiaries named in a previous will who were removed or reduced, people who would inherit under Ontario’s intestacy rules if there were no valid will, and certain dependants of the deceased.
A person who is simply unhappy with the outcome, but who has no legal or financial interest in the estate, generally cannot bring a challenge. Establishing standing is the first question a lawyer will assess.
Legal Grounds for Contesting a Will in Ontario
A will challenge must be based on a recognized legal ground, not simply a belief that the distribution was unfair. The table below sets out the main grounds on which a will can be contested in Ontario.
| Ground | What It Means |
|---|---|
| Lack of testamentary capacity | The deceased did not understand the nature of making a will, the extent of their property, or who might expect to benefit |
| Undue influence | The deceased was pressured or coerced into making the will, so it reflects someone else’s wishes rather than their own |
| Lack of knowledge and approval | The deceased did not genuinely know and approve of the contents of the will they signed |
| Improper execution | The will did not meet the formal signing and witnessing requirements under Ontario law |
| Fraud or forgery | The will, or a signature on it, was forged, or the deceased was deceived into signing it |
Of these, lack of testamentary capacity and undue influence are the most commonly raised. Both are heavily fact-dependent and often turn on medical records, the circumstances in which the will was prepared, and evidence about the deceased’s state of mind and relationships. Reviewing published estate litigation decisions on CanLII shows how much these cases depend on their specific facts.
Testamentary Capacity and Undue Influence Explained
Testamentary capacity refers to the mental ability required to make a valid will. The person must understand that they are making a will and its effect, understand the general extent of their property, and appreciate who might reasonably expect to benefit from their estate. Capacity can be affected by dementia, illness, medication, or other conditions, and it is assessed as of the time the will was made, not before or after.
Undue influence is different. It involves a person being coerced or pressured to the point that the will reflects someone else’s wishes rather than their own free choices. Mere persuasion or influence is not enough. The pressure must be serious enough to overpower the person’s independent judgment. Undue influence claims often arise where a caregiver, new partner, or one family member had significant control over an elderly or vulnerable person in their final years.
The Dependant Support Claim: A Different Kind of Challenge
Separate from challenging a will’s validity, Ontario law allows certain dependants to claim support from an estate even when the will is entirely valid. Under the Succession Law Reform Act, if a deceased person did not make adequate provision for a dependant, that dependant can apply to the court for support from the estate.
Dependants can include a spouse, common-law partner, children (including adult children in some circumstances), and other family members the deceased was supporting or had a legal obligation to support. This is an important distinction: a dependant support claim does not argue that the will is invalid. It argues that, valid or not, the will failed to provide for someone the deceased had a responsibility to provide for.
The Deadlines You Cannot Miss
Estate litigation in Ontario is subject to strict time limits, and they vary depending on the type of claim. A dependant support claim generally must be commenced within six months of the grant of the certificate of appointment of estate trustee, which is the estate equivalent of probate. In limited circumstances a court can allow a late claim, but only against the portion of the estate that has not yet been distributed.
Challenges to the validity of a will are generally subject to the standard two-year limitation period, though the practical timing is often driven by the estate administration process. Once an estate is distributed, recovering assets becomes far more difficult, which is why anyone considering a challenge should act before distribution occurs. Filing a notice of objection with the court early in the process can prevent the estate from being administered until the challenge is resolved.
The Process and What to Expect
Contesting a will typically begins by filing a notice of objection, which alerts the court and the estate trustee that the validity of the will is being challenged. This prevents the estate from being distributed while the matter is resolved. From there, the process may involve gathering evidence, including the deceased’s medical records and the lawyer’s notes from when the will was prepared, examinations of witnesses, and potentially mediation before any trial.
Most estate disputes settle before trial. Litigation is expensive and emotionally draining, particularly because it usually involves family members in conflict at a time of grief. A skilled estate litigation lawyer often works toward a negotiated resolution while preparing the case as though it will go to trial, which strengthens the negotiating position.
Estate disputes are handled by wills and estates lawyers and civil litigation lawyers. Find experienced wills and estates lawyers in Toronto and experienced wills and estates lawyers in Ottawa on Top Lawyers Canada.
Frequently Asked Questions
Can I contest a will just because I think it is unfair?
No. Ontario law strongly respects a person’s right to distribute their property as they choose, a principle known as testamentary freedom. A will cannot be challenged simply because a beneficiary feels the distribution was unfair or because they received less than they expected. A valid legal ground, such as lack of testamentary capacity, undue influence, or improper execution, is required. The exception is a dependant support claim, which does not require proving the will is invalid but instead argues the deceased failed to provide for someone they had an obligation to support.
How long do I have to contest a will in Ontario?
It depends on the type of claim. A dependant support claim generally must be started within six months of the certificate of appointment of estate trustee being issued. Challenges to a will’s validity are generally subject to the two-year limitation period, but practically speaking, you should act before the estate is distributed, because recovering distributed assets is much harder. Filing a notice of objection early can pause the administration of the estate while the dispute is resolved.
What evidence is needed to prove someone lacked capacity to make a will?
Capacity challenges typically rely on the deceased’s medical records, evidence from doctors and caregivers, the notes and observations of the lawyer who prepared the will, and testimony from people who interacted with the deceased around the time the will was made. Because capacity is assessed as of the moment the will was signed, evidence about the deceased’s mental state at that specific time is critical. These cases are evidence-intensive, which is why early involvement of a lawyer to preserve and gather records matters.
Who pays the legal costs in an estate dispute?
This has changed over time in Ontario. Historically, estate litigation costs were often paid out of the estate itself, but courts have moved away from that approach. Today, the general rule in many estate disputes follows ordinary civil litigation principles, meaning the unsuccessful party may be ordered to pay a portion of the successful party’s costs. This makes it important to have a realistic assessment of the strength of a challenge before proceeding, which an estate litigation lawyer can provide.
Can an adult child contest a parent’s will for leaving them out?
It depends. Being left out of a parent’s will is not, on its own, grounds to contest it, because parents are generally free to distribute their estate as they wish. However, an adult child may have a claim if there are grounds to challenge the will’s validity, or if the adult child was financially dependent on the parent and the will failed to provide adequate support, which can support a dependant support claim under the Succession Law Reform Act. An estate litigation lawyer can assess whether either avenue applies to your specific circumstances.