What to Know Before Contesting a Will in Ontario?

When a loved one passes away, family members are often overwhelmed with different emotions. And this chaos of emotions, uncertainty, or disagreement over asset distribution is a difficult phase to deal with. A will is a set of legal documents that details how a person’s assets are to be distributed after their death. Moreover, when you believe that a will is invalid, unfair or was made under suspicious circumstances, it becomes even more stressful. You may need to contest a will in order to protect your rights and ensure your loved one’s intentions are honoured. If you’re also dealing with this situation and planning to contest a will in Ontario, this blog post may assist.
This blog will highlight:

• Who Can Contest a Will in Ontario?
• What are the grounds for contesting a will in Ontario?
• The Process of Contesting a Will

Who Can Contest a Will in Ontario?

One thing that you must know is that not everyone can contest a will. Unless you don’t have a financial interest in the estate, you cannot contest a will in Ontario.

Financial interest in the estate basically means you have a potential momentary claim or entitlement to estate assets. 

Here’s a list of people who can contest a will:

• Spouse
• Children
• Parents
• Someone named in the current or previous will
• Someone who has a share in the estate

If you are confused about whether you qualify for contesting a will or not, you can get in touch with a Wills and Estates lawyer. They can assess your legal position and let you know if you qualify for contesting a will or not.

Understanding the Grounds of Contesting a Will

Challenging a will is not all about disliking what it contains. There are specific legal reasons behind it to cancel or alter a will. In Ontario, the primary grounds on which a will may be challenged are:

Lack of Testamentary Capacity

One of the requirements regarding wills is that the testators must have testamentary capacity when the will is created and signed. Which means, they must be of sound mind and legal age (at least 18 years old). The testator should be able to comprehend the nature and implications of their choices. If the testator was experiencing mental illness or cognitive impairment at the time they signed the will, then the will may be invalid in the eyes of the law.

To challenge a will on these grounds, medical records, psychiatric evaluations, witness testimonies and past behaviours are often submitted.

Undue Influence

Under influence means when the will is signed by the testator under some pressure or manipulation. This can happen through threats, emotional manipulation, or even subtle persuasion into creating the will in a specific manner, which can serve as a basis for a challenge. Undue influence is difficult to prove and usually involves showing that the testator was susceptible and that the influencer had dominance or superiority over the testator.

Lack of Proper Execution

Ontario law, under the Succession Law Reform Act, requires that a will be executed properly for it to be legally valid. This generally involves three steps, such as:

• The will must be typed or handwritten.
• The will must be signed by the testator at the end of the document.
• The signing must take place in front of two witnesses, who should also sign the will.

If any of the above requirements are not followed, then there might be issues and the will can be declared invalid.

Fraud or Forgery

Another reason why a will can be contested is if it's fraudulently made or forged. If there is proof the will was forged or the testator was deceived into signing it, a court can rule it void. Handwriting analysis, expert opinion, and other types of evidence can be utilized in such cases.

Omitted Dependents

Even where a will otherwise stands, dependents who have not been sufficiently provided for are entitled to make a claim. They include spouses, children, and other people who depended on the deceased for their livelihood.

Lack of formalities

One of the most common reasons to contest a will in Canada is if the formalities required by the law are not followed. If there are any shortcomings such as:

• Will not entirely written
• Lack of the testator’s signature
• Requirements as to witnesses were not followed

These can lead to contesting a will.

The Procedure for Challenging a Will

Challenging a will in Ontario normally entails the following steps:

Get Professional Advice Early

Timing is everything. In Ontario, the majority of claims have to be submitted within two years of the testator's death, although certain time limits are shorter in the case of specific claims. Consulting with skilled Lawyers for Wills right away protects your rights.

File a Notice of Objection

This is an official filing with the Ontario Superior Court of Justice that pauses the probate process while the matter is addressed. It gives notice to the court and estate trustees that you plan to contest the will.

Collecting Evidence

Your lawyer will assist in collecting documents, testimonies from witnesses, medical histories, or records of finances to use as evidence for your case.

Mediation or Court Case

Most will disputes in Ontario are resolved through mediation to prevent the cost and anxiety of a trial. If settlement is not feasible, the case goes to court, where a judge determines whether the will is valid.

Final Thoughts

Contesting a will in Ontario is not easy; it comes with various complexities. But it is necessary when fairness, wishes of your loved ones, legal rights and true intentions are at stake. But before you contest a will, knowing the legal grounds and the process is essential to make an informed decision.

Consulting a will lawyer at Rutman Law can be a wise decision, as they can provide you with accurate legal guidance. They can help you protect your interests and ensure your rights are safeguarded throughout the process.