Are you looking at contesting a will before probate?

Contesting a will can be an emotionally charged and complex process, especially when family relationships and personal assets are at stake. This process becomes all the more intricate within the Canadian legal framework, particularly in the province of Ontario. For anyone seeking to challenge a will prior to its entry into probate, it’s crucial to understand the specifics of Ontario’s estate law.

First, it’s important to understand what probate actually means. The probate process is the legal procedure where the court officially recognizes a will as the valid last testament of the deceased.

Furthermore, it confirms the appointment of an executor – the person who is to administer the estate in accordance with the provisions in the will. The timing of a will contestation before probate is paramount, as waiting until after the probate process has begun can render the process much more difficult.

How to contest a will in Ontario

Now, let’s delve into how to contest a will in Ontario before it enters probate. It should be noted that not just anyone can challenge a will. An individual must have a legitimate interest, meaning they would be in a better position if the will were set aside or if no will existed at all. This group of people often includes the deceased’s children, spouse, and other dependents.

When contesting a will, it’s necessary to demonstrate a valid reason or ground for the challenge. In Ontario, there are several potential grounds for contesting a will. For instance, if you believe the will doesn’t reflect the true intentions of the deceased due to issues of capacity or undue influence, you may have a case. Similarly, if the will was not properly executed, signed, and witnessed, it might be challengeable.

In cases where the deceased may not have had the mental capacity to understand the implications of the will they were making, it may be possible to challenge the will on these grounds. This typically requires medical evidence, but it could also be based on witness testimony or other forms of evidence demonstrating incapacity.

Common ground for contesting a will

Another common ground for contesting a will is undue influence. Undue influence occurs when someone manipulates or coerces the testator into making a will that doesn’t genuinely reflect their wishes. Proving undue influence is notoriously difficult, as it often requires establishing that the influencer had the opportunity, motive, and actual act of imposing their will over the testator.

Further, a will may be contested on the grounds that it was not duly executed in accordance with Ontario law. The Succession Law Reform Act in Ontario stipulates that a will must be in writing, signed by the testator, and witnessed by two individuals who are not beneficiaries or spouses of beneficiaries under the will.

If you are considering contesting a will before probate in Ontario, the first step is to file a Notice of Objection with the court registrar in the jurisdiction where the probate application is expected to be filed. This prevents the issuance of a Certificate of Appointment of Estate Trustee (commonly known as ‘probate’) until the objection has been dealt with by the court.

Time is of the essence

Remember, time is of the essence. The objection must be filed as soon as possible, ideally before the executor submits the will for probate. Once the will is admitted to probate, it’s presumed to be valid, and it’s much more difficult to overturn.

Challenging a will is not an easy process. It’s a path filled with potential legal and emotional pitfalls. That’s why it’s crucial to consult with a lawyer experienced in estate litigation to guide you through the process. While it can be challenging, in some circumstances, contesting a will before probate in Ontario is necessary to ensure that a loved one’s true wishes are honoured and that fairness prevails.

The term “probate” is no longer used in Ontario. A Certificate of Appointment of Estate Trustee with a Will is a document issued by the court that proves the authority of the Estate Trustee to administer the Will.

A Certificate of Appointment of an Estate Trustee without a will is a document granted by the court that gives authority to the Estate Trustee to manage and distribute the estate of the deceased who died without a Will.

Contesting A Will Before Probate

Dependent’s Support Claims are made pursuant to Part V of the Succession Law Reform Act and are a claim made against the estate by a Dependent for adequate provisions to be made to them out of the estate.

Section 58 of the Succession Law Reform Act provides for the analysis of whether the deceased has made adequate provision for the proper support of his or her dependents.

A court must evaluate what has been given under the terms of the Will, or intestacy, and then determine what is adequate support.

As we will see, the nuances of “Who is a dependent?” and “What is adequate support?” are the crux of the dependent’s support claim.

Need help with contesting a will before probate? Contact a lawyer in Ontario.

Who is a “Dependent”?

The Succession Law Reform Act stipulates that if you are the: Child, Parent; Spouse; or Brother or Sister of a deceased who was providing support (or was under a legal obligation to provide support) immediately before his or her death then you are a dependant for the purposes of a Dependent’s Support Claim.

While it may seem clear to you who your spouse, parents, children, or siblings are, the law carves out specific definitions of who would qualify for the purposes of a Dependent’s Support Claim.

Contesting A Will Before Probate

For example, a niece who has always been like a daughter to you may or may not qualify as a Dependent.

Similar to a will challenge, a dependent’s support claim must be brought within 2 years of the deceased’s date of death and within 6 months of the date of the granting of the Certificate of Appointment of Estate Trustee.

This timeline can be problematic because you waiting for the Certificate of Appointment to be granted while running up against a 2-year limitation.

Undue Influence

So let’s say you need more time to bring your claim and the Court grants you an extension. Your claim will only move forward with respect to the assets in the estate that have not yet been distributed.

So there is a lot of space for a claim to lose its footing based on the limitation period alone.

Section 61 of the Succession Law Reform Act provides that an application for Dependent’s Support must be made within 6 months from the issuance of the Certificate of Appointment of an Estate Trustee.

Contesting A Will Before Probate

However, notwithstanding the 6 month limitation period, s.61(2) of the Succession Law Reform Act provides that the Court, at its discretion, may allow an application.

This can be made at any time with respect to any portion of the estate that remains undistributed at the date of the application. Accordingly, an application may be made beyond the 6-month period. This can happen if estate assets still exist and with leave.

The lawyers can help with undue influence, grounds for contesting, and the granting of probate. Further, they can assist with contested probate. Finally, they can help with claims under inheritance and lack of capacity.

Burden Of Proof On The Contestant

The burden of proving suspicious circumstances falls on the propounder of the Will. They must prove the testator had the requisite capacity. Also, on a balance of probabilities, the testator knew and approved the contents of the will.

Lawyers can help with:

helping with your burden of proof
undue influence
grounds for contesting
estate planning
improper execution
lack of testamentary capacity
power of attorney
legal advice

If you need a lawyer to help with contesting a will before probate, contact us. We will connect you with an estate lawyer.

Suspicious Circumstances

A testator who has suffered significant ill health. Particularly if the condition, disease, or taking medication could affect the mental stability of the testator.

Or if a beneficiary has been particularly involved in “assisting” the testator in the preparation of the Will by:

arranging for the making of the Will;
taking the testator to the lawyer and participating in the meeting with the lawyer; and
a Will prepared on instructions provided by the questionable beneficiary
in the instance where a Will is being changed. Dispositions in the Will that are drastically different from the terms of the former Will;
circumstances where the testator appears dependent upon another. For example, allowing the other person to speak on his or her behalf;
disinheritance of close family in favour of a third party. More generally, a Will that makes no gifts to those seemingly appropriate and makes gifts to inappropriate beneficiaries; and
a testator who has recently changed living circumstances. Particularly one who moves in with the alleged perpetrator, or marries quickly.

What does Probate mean?

In the simplest terms, Probate is a process that verifies if a Will is real.

Does everyone have to apply for Probate? Not exactly, no. Whether a will needs to be probated or not depends on the institution that is holding the asset.

Some institutions may require that a will be probated BEFORE they allow access or distribute the funds to any parties.

What does this mean, and does it apply to you?

Let’s say your father had all of his money in one bank account, and he left it all to you. This financial institution may require you to prove that the Will is legitimate. This must be done before you are able to access the funds or distribute them to anyone, or yourself.

Again, depending on the bank, they may require you to receive what’s called a “Grant of Probate.” This is what is granted once you have successfully applied for probate.

The process of probating a will is not as straightforward as most people think. There are a lot of things to consider and various forms that are required to be filed in Court.

It is highly recommended that you seek legal advice from a lawyer trained in estate law to help you with the probate process.

Contesting A Will Before Probate

The burden of proving fraud is carried by those who attack the Will. Obtaining the evidence of the 2 witnesses to the Will often dispels allegations of fraud.

However, the propounder of the Will must prove that it is more likely than not that the signature on the Will is the signature of the testator.

Some allegations warrant engaging a handwriting expert. What remains surprising to me, and is absolutely true, is just how many people allege that an improper beneficiary held their hand on top of the deceased’s to sign the deceased’s name in executing a will.

No wonder there are so many handwriting experts in demand.

Find a Local Lawyer

Contact us

Contesting A Will Before Probate In Ontario