General Legal Principles
In Ontario, you can challenge a will if you have a financial interest in the estate.[1] A will can be challenged by “all persons entitled under the will sought to be proved, all prior wills, and those entitled on an intestacy of the deceased person.”[2] However, courts will not invalidate a will simply because an interested party is dissatisfied. Judges apply the principle that a valid will should stand, and the deceased’s wishes should be respected. Accordingly, unless there is evidence to the contrary, a court will assume that a person who wrote a will was fully competent and had the necessary mental capacity at the time the will was made.
Therefore, to challenge a will, the onus of proving that a will is invalid falls on the party bringing the challenge.
Grounds for Challenging a Will
There are four key grounds for challenging a will in Ontario:
1. Capacity
2. Undue Influence
3. Formalities of Execution; and
4. Public Policy
Capacity
For a will to be valid, the Testator (i.e. the person making a will) must know and approve the contents of the will.[3] A Testator cannot know and approve of a will if they do not have the capacity to understand what the will says and know which assets make up their estate.
Undue Influence
Another ground for challenging a will is proving that the Testator was unduly influenced at the time their will was drafted. To succeed on this basis, the propounder of the will (i.e. the person challenging the will) must establish that the person being accused of exercising undue influence exercised unfair or improper conduct, including but not limited to coercion, cheating or some sort of fraud.
Formalities of Execution
In Ontario, wills must be executed in accordance with the Succession Law Reform Act. Specifically, the act states that:
(2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.[4]
A court may set aside a will where these legal requirements for signing were not followed.
Public Policy Concerns
In Ontario, the principle of testamentary freedom, which grants the Testator the liberty to include any provisions they desire in their Will, is subject to limitations. Should a court determine that a Will violates public morality, it has the authority to invalidate it. This area of the law is not as clear and there is no easy formula to apply. However, courts have set aside wills in the past under this criteria where:
• Bequests were made conditional on the beneficiary not getting married;
• Bequests discriminated against people based on religion; and
• Bequests that promoted breaking the law.
Conclusion
This blog is meant to provide a very brief overview of the legal grounds for challenging a will. If you are considering challenging a will, please reach out to Harkirt Singh Dhadda in DBS LLP’s estate litigation practice for further advice.
_______________________________________
[1] Rules of Civil Procedure, R.R.O. 190, Reg. 194 at Rule 75.01.
[2] R. Hull and I. Hull, Macdonnell, Sheard & Hull on Probate Practice (4th Ed.) (Thomson Canada Limited, 1996) at p.21.
[3] Vout v. Hay, 1995 CanLII 105 (SCC) at para 26.
[4] Succession Law Reform Act, R.S.O. 1990, c. S.26