Challenging a Will from the Perspective of a Child



What if my parents cut me out of their Will?

First and foremost, there is a policy in favour of honouring the wishes of a testator (the person making the Will). The principle of “testamentary freedom” safeguards a testator’s right to dispose of their property and choose the beneficiaries they so desire.[1]

Accordingly, an unequal division of property, even among children, is not considered suspect especially since it would mean that every Will in this regard, other than when there is an equal distribution, must be challenged.[2]

That said, a Last Will and Testament may be challenged on the following bases:

  1. Absence of testamentary capacity or cognitive ability;
  2. Absence of approval or knowledge of the terms of the Will;
  3. Undue influence or coercion;
  4. Forgery or fraud; and/or
  5. Non-compliance with the legislative requirements for executing a Will.

Collectively, the above-noted grounds are known as the principle of “suspicious circumstances”.

When challenged, the propounder of the Will (the person relying on the Will) must prove that the testator possessed capacity and knew and approved of its contents. In such cases, the drafting solicitor’s file will be relevant, in addition to medical records belonging to the testator. Once satisfied the testator was of competent mind and had their Will read over to them, the circumstances point to a strong presumption that the Will has been duly, and properly executed.[3]

Conversely, when a Will is challenged based on undue influence or fraud, it is the attacker of the Will who bears the burden of proving it. This is an important distinction because where an attacker pleads undue influence and their case appears weak from the outset, the propounder of the Will is free to move summarily (without the need for a trial) to have the matter dismissed.[4]

If successful, the attacker would be subject to costs, meaning they would have to pay the legal fees of the propounder in addition to their own.

More recently, the courts have refused to question the validity of a Will and order disclosure relating to an estate where the attacker does not meet a minimal evidentiary threshold to substantiate suspicious circumstances, whether lack of capacity or undue influence, thereby saving an estate from needless expense.[5]

At Hummingbird Lawyers LLP, we can help you determine the strength of your Will challenge and guide you through the court process.

Sometimes, formal proof of a Will is necessitated where, for instance, both witnesses cannot be located, both are dead, or the Will being put forward is not an original. The court may require the estate trustee to bring an Application for Directions respecting proof of the Will.[6] This procedure is referred to “proof in solemn form”. Additionally, where a Will has been lost or destroyed, it may be proved by way of application without an appearance where all parties consent[7], otherwise it will be necessary to apply to the court for directions respecting the procedure.

Will challenges are made to the Ontario Superior Court of Justice in the jurisdiction where the deceased last resided or held assets and can be initiated in two ways. If a Certificate of Appointment of Estate Trustee (sometimes referred to a Letters Probate) has not been issued, a Notice of Objection should be filed as soon as possible. In the event a Certificate of Appointment of Estate Trustee has been issued, an order must be obtained by way of application requiring the person to whom it was issued return it to court so the validity of the Will can be determined.

Hummingbird lawyer, Alissa N. Winicki, effectively convinced the court to return a Certificate of Appointment of Estate Trustee after it was issued, given an alleged mistake in the Will.

What if I still feel like I am being treated unfairly under the Will

What if I still feel like I am being treated unfairly under the Will?

You may have a claim to the estate in the event the deceased was financially supporting you, voluntarily or legally, immediately before their death.[8] This is known as a claim for dependant support which must be commenced by way of Notice of Application to the Superior Court of Justice within six months of issuance of a Certificate of Appointment of Estate Trustee.[9]

Once the application is made, distribution of the estate is automatically stayed.[10] In determining the quantum and duration of support[11], the court will consider the statutory criteria (e.g., age, needs, capacity to contribute to your own support) in addition to any moral obligation assigned to the deceased.[12] With this type of claim, even assets passing outside of the estate by way of joint ownership (e.g., joint accounts), contract (e.g., life insurance policies), or beneficiary designation (e.g., RRSPs) can be clawed back thereby increasing the value for the purposes of calculating support.[13]

At Hummingbird, our lawyers can help you determine whether you qualify for dependant relief. Alissa N. Winicki successfully argued that a deceased demonstrated a settled intention to treat CL, who was neither his biological, adopted, or step- daughter, as a member of his unconventional family entitling her to support.[14]

What if I have concerns about the executor and estate trustee appointed in the Will?

A person, typically with a financial interest in the estate, may apply to the Superior Court of Justice to have an estate trustee removed and replaced.[15] To do so, there must be evidence that the estate trustee is not fulfilling their duties or is failing to act in the best interest of the estate.

An estate trustee is generally charged with the following duties:

  • Determine the assets and liabilities in the estate;
  • Protect and preserve the assets;
  • Maintain trust accounts;
  • Ascertain, defend, settle, and/or pay debts;
  • Prepare an estate accounting;
  • Distribute assets to the beneficiaries; and
  • File income tax returns.

Consequently, in carrying out the foregoing, you will want to consider whether the estate trustee lacks transparency, conducts themself in a dilatory manner, or exhibits prejudice towards any of the beneficiaries.

Keep in mind that in the end an estate trustee must submit their accounts to the beneficiaries for approval. If approval cannot be obtained, the estate trustee will be forced to pass accounts through court, which is a formal audit commenced by Notice of Application.[16]

When court proceedings have already been commenced, such as in the case of a Will-challenge, an order can be sought appointing an estate trustee during litigation (“ETDL”). An ETDL is a neutral third-party court officer who has authority to administer an estate while litigation is pending but cannot make distributions from the residue.[17]

Sometimes, however, an estate trustee appointed under the Will may not be compelled to apply for the Certificate of Appointment of Estate Trustee or even to determine whether a Notice of Objection has been filed. In such circumstances, an order requiring the estate trustee to either apply for or refuse the appointment should be sought, which can be obtained without notice.[18]

At Hummingbird Lawyers LLP, we can assist you determine whether an estate trustee is in breach of their fiduciary duties and help you hold them to account.

For more information on challenging a Will, get in touch with Alissa N. Winicki.

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    References and Footnotes

    1. Spence v. BMO Trust Co., 2016 CarswellOnt 3345 (Ont. C.A.); leave to appeal refused, 2016 CarswellOnt 9351 (S.C.C.).
    2. McCullough Estate v. McCullough, 1997 CarswellAlta 49, 195 A.R. 21, 69 A.C.W.S. (3d) 217 (A.B. Q.B.) at para 103; affirmed 1998 CarswellAlta 84, 1998 ABCA 38 (A.B. C.A.).
    3. Fulton v. Andrews (1875), L.R. 7 H.L. 448 (U.K. H.L.).
    4. Vout v. Hay, 1995 CarswellOnt 186, [1995] 2 S.C.R. 876 (S.C.C.) at para. 28; and Taylor-Reid v. Taylor, 2016 CarswellOnt 12013, 2016 ONSC 4751 (Ont. S.C.J.) at paras. 82-84.
    5. Johnson v. Johnson, 2021 CarswellOnt 13623, 2021 ONSC 6415, affirmed 2022 CarswellOnt 14167, 2022 ONCA 682 (Ont. C.A.).
    6. Rules of Civil Procedure, R.R.O. 1990, Reg. 194 under Courts of Justice Act, R.S.O. 1990, c. C.43, r. 75.01 [Rules of Civil Procedure].
    7. Rules of Civil Procedure, r. 75.02.
    8. Succession Law Reform Act, R.S.O. 1990, c. S.26 [SLRA], s. 58. Also available for spouses, parents, and siblings of a deceased.
    9. Ibid at s. 61(1).
    10. Ibid at s. 67.
    11. Ibid at s. 63.
    12. Ibid at s. 62; and Cummings v. Cummings, 2004 CarswellOnt 99, [2004] W.D.F.L. 131, (Ont. C.A.).
    13. SLRA at s. 72.
    14. Deleon v. Estate of Raymon DeRanney, 2020 CarswellOnt 1800, 2020 ONSC 19 (Ont. S.C.J.).
    15. Trustee Act, R.S.OSpence v. BMO Trust Co., 2. 1990, c. T.23, s. 5.
    16. Rules of Civil Procedure, r. 74.17.
    17. Estates Act, R.S.O. 1990, c. E.21, s. 28.
    18. Ibid, s. 24; and Rules of Civil Procedure, r. 74.15(1)(a).

    Alissa is an Associate Lawyer with the Hummingbird Lawyers Wills & Estates practice group. For the past eight years, Alissa has been representing clients within a multitude of legal areas, including succession planning, estate administration and litigation, family law, and civil litigation. Having studied in England, where trust law originated, her practice streamlined naturally to estates where she has been specializing for the past several years.

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