Contesting a Will in Ontario: Grounds and Process

Grounds for Contesting a Will in Ontario

Contesting a will in Ontario requires valid grounds — you cannot challenge a will simply because you are unhappy with its contents. Courts respect the principle of testamentary freedom and require strong evidence to override a will. The recognized grounds for challenging a will include:

1. Lack of Testamentary Capacity

The testator must have had "testamentary capacity" at the time of making the will — they must have understood: the nature and effect of making a will, the extent of the property they are disposing of, the natural objects of their bounty (their family and close relatives), and the nature of the claims of those who might expect to benefit. Challenges based on dementia, Alzheimer's disease, or other cognitive impairment at the time of execution are the most common capacity challenges.

2. Undue Influence

A will can be set aside if the testator's free will was overridden by the pressure, manipulation, or coercion of another person — typically a person who benefits under the will. Undue influence must amount to dominance of the testator's will. Circumstantial evidence (the testator's vulnerability, the beneficiary's opportunity for influence, suspicious changes in the will) may support an inference of undue influence.

3. Fraud or Forgery

A will made as a result of fraud — where the testator was deceived about the contents of the document — or a forged will can be set aside.

4. Lack of Proper Execution

If the will was not properly signed and witnessed in accordance with Ontario's Succession Law Reform Act, it is invalid. However, Ontario courts now have discretion to validate improperly executed wills if satisfied that the document represented the testator's fixed and final intention.

How to Challenge a Will in Ontario

A will challenge is commenced by filing a Notice of Objection with the Ontario Superior Court of Justice before or during probate proceedings. These proceedings are expensive and emotionally charged — many will challenges settle through mediation. Consulting an estate litigation lawyer before proceeding is essential.